7985Friday, May 2, 2014ContentsAgricultural MarketingAgricultural Marketing ServiceRULESHandling and and Reporting Requirements for Yellow Fleshed and White Types of Potatoes:Irish Potatoes Grown in Washington,24997-249992014-10036Marketing Orders:Milk in the Appalachian, Florida, and Southeast Areas,24999-250022014-10037Transportation Credits:Milk in the Appalachian and Southeast Marketing Areas,25003-250062014-10031PROPOSED RULESTerminations of Proceedings:Milk in the Appalachian and Southeast Marketing Areas,25032-250332014-10033AgricultureAgriculture DepartmentSee

NOTICESAgency Information Collection Activities; Proposals, Submissions, and Approvals:Annual Report from Foreign-Trade Zones,251082014-10029Committee for PurchaseCommittee for Purchase From People Who Are Blind or Severely DisabledNOTICESProcurement List; Additions and Deletions,25114-251152014-100622014-10063Copyright Royalty BoardCopyright Royalty BoardRULESUse of Sound Recordings under Statutory License,25009-250102014-09799PROPOSED RULESUse of Sound Recordings under Statutory License,25038-250492014-09798CorporationCorporation for National and Community ServiceNOTICESAgency Information Collection Activities; Proposals, Submissions, and Approvals,25115-251172014-10013Defense DepartmentDefense DepartmentSee

7985Friday, May 2, 2014Rules and RegulationsDEPARTMENT OF AGRICULTUREFood and Nutrition Service7 CFR Part 246RIN 0584-AD77Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Revisions in the WIC Food Packages; Approval of Information Collection RequestAGENCY:

Food and Nutrition Service, USDA.

ACTION:

Final rule; Notice of approval of Information Collection Request (ICR).

SUMMARY:

The rule titled Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Revisions in the WIC Food Packages was published on March 4, 2014. The Office of Management and Budget cleared the associated information collection requirements (ICR) on April 14, 2014. This document announces approval of the ICR.

DATES:

The ICR associated with the rule published in theFederal Registeron March 4, 2014, at 79 FR 12273, was approved by OMB on April 14, 2014, under OMB Control Number 0584-0043.

We are amending the fruits and vegetables regulations to allow the importation of cape gooseberry from Colombia into the United States. As a condition of entry, cape gooseberry from Colombia must be subject to a systems approach that includes requirements for establishment of pest-free places of production and the labeling of boxes prior to shipping. The cape gooseberry also must be imported in commercial consignments and accompanied by a phytosanitary certificate issued by the national plant protection organization of Colombia certifying that the fruit has been produced in accordance with the systems approach. This action allows for the importation of cape gooseberry from Colombia into the United States while continuing to provide protection against the introduction of plant pests.

The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-66, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests.

Prior to the effective date of this final rule, the regulations only allowed cape gooseberry (Physalis peruviana) to be imported into the United States from Colombia if the commodity was treated with cold treatment for Mediterranean fruit fly (Ceratitis capitataor Medfly).

However, the national plant protection organization (NPPO) of Colombia requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow commercial consignments of cape gooseberry from production sites recognized as free of Medfly in the Bogota Savannah and the neighboring municipalities above 2,200 meters of elevation in the Departments of Boyacá and Cundinamarca without cold treatment.

In response to the request of the NPPO of Colombia, we prepared a commodity import evaluation document (CIED) titled “Recognition of cape gooseberry production sites that are free of Mediterranean fruit fly within a low prevalence area in Colombia Bogota Savannah and the neighboring municipalities above 2,200 meters in the Departments of Boyacá and Cundinamarca.”

Based on the evidence presented in the CIED, on August 16, 2013, we published in theFederal Register(78 FR 49972-49975, Docket No. APHIS-2012-0038) a proposed rule1to authorize the importation of cape gooseberry from Colombia into the United States without cold treatment, provided that the cape gooseberry were produced in accordance with a systems approach consisting of the following requirements: Production in pest-free areas of production in the Bogota Savannah or the neighboring municipalities above 2,200 meters of elevation in the Departments of Boyacá and Cundinamarca; importation in commercial consignments only; labeling of boxes; phytosanitary inspection; and issuance of a phytosanitary certificate.

1To view the proposed rule, supporting documents, or the comments that we received, go tohttp://www.regulations.gov/#!docketDetail;D=APHIS-2012-0038.

We solicited comments concerning our proposal for 60 days ending October 15, 2013. We received two comments by that date. One, from a U.S. importer of cape gooseberry from Colombia, expressed support for the proposed rule. The other, from the NPPO of Colombia, requested several modifications to what it understood to be the provisions of the proposed rule. We discuss this latter comment below.

Comments Regarding Pest-Free Areas of Production

As we mentioned above, in order for cape gooseberry to be imported into the United States from Colombia without cold treatment for Medfly, we proposed that the cape gooseberry would have to be produced in areas of Colombia that have been determined to be free from Medfly. In order to demonstrate such freedom, we proposed that the NPPO of Colombia would have to enter into a bilateral workplan with APHIS, and trap for Medfly according to the trapping requirements in that bilateral workplan.

This proposed trapping requirement to demonstrate freedom from Medfly was recommended by the CIED that accompanied the proposed rule. The CIED also provided recommendations regarding the placement and servicing of Medfly traps to implement this proposed requirement. Among other recommendations, it suggested that Jackson traps, a type of Medfly trap, be placed at intervals of 1 trap per hectare.

The NPPO of Colombia requested that this interval be 1 trap per 2 hectares or fraction thereof. The NPPO provided information demonstrating that most cape gooseberry production sites in Colombia are a hectare or less, but that a significant minority of sites are slightly more than a hectare. The NPPO stated that requiring two traps in these latter production sites would be excessive in light of other surveillance activities for Medfly that it already routinely conducts.

The CIED also recommended the use of McPhail or multilure Medfly traps and suggested that such traps be serviced every 7 days. The NPPO stated that it currently services McPhail traps at 14-day intervals, and requested that we allow such servicing intervals to continue if the proposed rule were finalized. The NPPO pointed out the International Atomic Energy Agency recommends servicing McPhail traps once every 7 to 14 days.

As we noted in the preamble to the proposed rule, the provisions of the proposed rule were based on the recommendations of the CIED. The CIED recommended trapping to demonstrate freedom from Medfly within cape gooseberry production areas in Colombia, and the proposed rule incorporated this recommendation as a proposed provision.

The CIED also recommended one method of implementing this proposed trapping requirement. Out of recognition that there could be other methods of implementing the requirement, we did not propose to codify that method. Rather, we proposed to discuss the requirement within the context of developing a bilateral workplan with the NPPO of Colombia. Following the effective date of this final rule, we will engage the NPPO in such a discussion, and develop trapping procedures that are mutually agreed upon to demonstrate freedom from Medfly within a particular cape gooseberry production area.

Comments Regarding Post-Detection Measures

In the proposed rule, we proposed that, if Medfly were captured in a pest-free area of Colombia, this would result in immediate cancellation of exports from cape gooseberry farms within 5 square kilometers of the detection site.

The NPPO of Colombia pointed out that there has only been one detection of Medfly in the proposed pest-free area since 1993. The NPPO also stated that it is the general consensus of entomologists that cape gooseberry is not a preferred host for Medfly. For these reasons, the NPPO suggested that a 5 square kilometer prohibition on exports following a single Medfly detection was not commensurate with risk. Instead, they suggested a 0.5 square kilometer prohibition following such a detection.

The generally accepted standard for eradication areas for Medfly is 5 square kilometers. In order for us to deviate from that standard to the extent requested by the NPPO, there would have to be evidence suggesting that cape gooseberry is so atypical and inhospitable a host of Medfly that a 0.5 square kilometer eradication area surrounding an outbreak would be sufficient to detect all Medfly in the area surrounding the detection and preclude the further spread of the pest. Detection rates of Medfly at non-commercial cape gooseberry sites within the United States suggest that, while cape gooseberry is not a preferred host of Medfly, Medfly populations can establish on cape gooseberry. Thus we are making no change in response to this comment.

In the proposed rule, we proposed that the prohibition on exports of cape gooseberry to the United States following a Medfly detection would continue until APHIS and the NPPO of Colombia agree that the risk has been mitigated. The CIED that accompanied the proposed rule suggested that the duration of this prohibition should be no less than three Medfly life cycles based on degree-day models.

The NPPO of Colombia stated that they do not have field studies regarding degree-day models for Medfly, and suggested that any degree-day models used to fulfill this regulatory requirement be based on peer-reviewed laboratory studies instead.

As we stated in the proposed rule, the prohibition would remain in effect until APHIS and the NPPO of Colombia agree that the risk has been mitigated. Degree-day models regarding the life cycles of Medfly will factor into such a determination, but will not be the sole determinant. To that end, peer-reviewed laboratory studies regarding degree-day models for Medfly will be taken into consideration.

Miscellaneous

In the proposed rule, we proposed to add the conditions governing the importation of cape gooseberry from Colombia as § 319.56-60. In this final rule, they are added as § 319.56-67.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed underFOR FURTHER INFORMATION CONTACTor on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

APHIS is amending the current regulations to allow the entry of fresh cape gooseberry from Colombia under a systems approach. Since 2003, Colombia has been allowed to export fresh cape gooseberry to the United States under a cold treatment protocol to prevent the entry of Medfly. The systems approach permits cape gooseberry imports without cold treatment from production sites recognized as free of Medfly. In 2011, only about 0.2 percent (14 metric tons) of Colombia's fresh cape gooseberry exports were shipped to the United States, valued at about $90,300.

The United States does not produce cape gooseberry commercially. Small entities that may benefit from increased imports of fresh cape gooseberry from Colombia will be importers, wholesalers, and other merchants who sell this fruit. While these industries are primarily comprised of small entities,APHIS expects any impacts of the rule for these businesses to be minor.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12988

This final rule allows cape gooseberry to be imported into the United States from Colombia. State and local laws and regulations regarding cape gooseberry imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0411, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in theFederal Registerproviding notice of what action we plan to take.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

2. Section 319.56-67 is added to read as follows:§ 319.56-67Cape gooseberry from Colombia.

Cape gooseberry (Physalis peruviana) may be imported into the United States from Colombia in accordance with the conditions described in this section. These conditions are designed to prevent the introduction ofCeratitis capitata.

(a)Workplan.The national plant protection organization (NPPO) of Colombia must provide a bilateral workplan to APHIS that details the activities that the NPPO will, subject to APHIS' approval, carry out to meet the requirements of this section. APHIS will be directly involved with the NPPO in the monitoring and auditing implementation of the systems approach.

(b)Places of production.(1) All places of production must be registered with the NPPO of Colombia.

(2) All places of production must be located within theC. capitatalow prevalence area of the Bogota Savannah and the neighboring municipalities above 2,200 meters in the Departments of Boyacá and Cundinamarca.

(c)Mitigation measures for C. capitata.(1) Trapping forC. capitatamust be conducted in the places of production in accordance with the bilateral workplan to demonstrate that those places are free ofC. capitata.Specific trapping requirements must be included in the bilateral workplan. The NPPO of Colombia must keep records of fruit fly detections for each trap and make the records available to APHIS upon request.

(2) All fruit flies trapped must be reported to APHIS immediately. Capture ofC. capitatawill result in immediate cancellation of exports from farms within 5 square kilometers of the detection site. An additional 50 traps must be placed in the 5 square kilometer area surrounding the detection site. If a second detection is made within the detection areas within 30 days of a previous capture, eradication using a bait spray agreed upon by APHIS and the NPPO of Colombia must be initiated in the detection area. Treatment must continue for at least 2 months. Exports may resume from the detection area when APHIS and the NPPO of Colombia agree the risk has been mitigated.

(d)Post-harvest procedures.The cape gooseberry must be packed in boxes marked with the identity of the originating farm. The boxes must be packed in sealed and closed containers before being shipped.

(e)Phytosanitary inspection.After packing, the NPPO of Colombia must visually inspect a biometric sample of cape gooseberry at a rate jointly approved by APHIS and the NPPO of Colombia, and cut open the sampled fruit to detectC. capitata.

(g)Phytosanitary certificate.Each consignment of cape gooseberry must be accompanied by a phytosanitary certificate issued by the NPPO of Colombia containing an additional declaration stating that the fruit originated from a place of production free ofC. capitatawithin the low prevalence area of Bogota Savannah and the neighboring municipalities above 2,200 meters of elevation in the Departments of Boyacá and Cundinamarca and was produced in accordance with the requirements of § 319.56-67.

(Approved by the Office of Management and Budget under control number 0579-0411)Done in Washington, DC, this 28th day of April 2014.Kevin Shea,Administrator, Animal and Plant Health Inspection Service.[FR Doc. 2014-10039 Filed 5-1-14; 8:45 am]BILLING CODE 3410-34-PDEPARTMENT OF AGRICULTUREAgricultural Marketing Service7 CFR Part 946[Doc. No. AMS-FV-13-0067; FV13-946-2 FIR]Irish Potatoes Grown in Washington; Temporary Change to the Handling Regulations and Reporting Requirements for Yellow Fleshed and White Types of PotatoesAGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Affirmation of interim rule as a final rule.

SUMMARY:

The Department of Agriculture is adopting, as a final rule, without change, an interim rule that temporarily exempted yellow fleshedand white types of potatoes from minimum quality, maturity, pack, marking, and inspection requirements under the Washington potato marketing order through June 30, 2014. The interim rule also modified an existing report to require handlers of yellow fleshed and white types of potatoes to report information necessary to administer the order during the period that such potatoes are exempt from handling requirements. This change is expected to reduce overall industry expenses and increase net returns to producers and handlers while giving the industry the opportunity to explore alternative marketing strategies.

Small businesses may request information on complying with this and other marketing order regulations by viewing a guide at the following Web site:http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide;or by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Order No. 946, as amended (7 CFR part 946), regulating the handling of Irish potatoes grown in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866, 13563, and 13175.

The handling of Irish potatoes grown in Washington is regulated by 7 CFR part 946. Prior to this change, yellow fleshed and white types of potatoes were subject to the requirements contained in the order's handling regulations (§ 946.336). The Washington potato industry was concerned that the cost of mandatory inspections for those types of potatoes, which has increased, may outweigh the benefits of having the quality regulations in place. By exempting yellow fleshed and white types of potatoes from handling regulations, the industry expects to reduce overall expenses and provide the handlers the opportunity to explore alternative marketing strategies.

Therefore, this rule continues in effect the interim rule that temporarily exempted yellow fleshed and white types of potatoes from the order's handling regulations through June 30, 2014. The interim rule also modified the order's reporting requirements to require reports from handlers of yellow fleshed and white types of potatoes through June 30, 2014. Assessments on all fresh yellow fleshed and white types of potatoes handled under the order will remain in effect during the temporary exemption.

In an interim rule published in theFederal Registeron October 23, 2013 (78 FR 62967, Doc. No. FV-13-0067, FV13-946-2 IR), § 946.336 was changed to exempt yellow fleshed and white types of potatoes from handling requirements through June 30, 2014, and § 946.143 was modified to require that each person handling yellow fleshed and white types of potatoes submit a monthly report to the Committee during the exemption period.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are 43 handlers of Washington potatoes subject to regulation under the order and approximately 267 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. (13 CFR 121.201)

For the 2011-2012 marketing year, the Committee reports that 11,018,670 hundredweight of Washington potatoes were shipped into the fresh market. Based on average f.o.b. prices estimated by the USDA's Economic Research Service and Committee data on individual handler shipments, the Committee estimates that 42, or approximately 98 percent of the handlers, had annual receipts of less than $7,000,000.

In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for Washington potatoes for 2011-2012 was $7.90 per hundredweight. The average gross annual revenue for the 267 Washington potato producers is therefore calculated to be approximately $326,021. In view of the foregoing, the majority of Washington potato handlers and producers may be classified as small entities.

This rule continues in effect the action that exempted yellow fleshed and white types of potatoes from the minimum quality, maturity, pack, marking, and inspection requirements under the order's handling regulations through June 30, 2014. This rule also continues in effect the interim rule that modified the order's reporting requirements to require reports from handlers of yellow fleshed and white types of potatoes during the exemption period. This change is expected to reduce overall industry expenses and provide the industry with the opportunity to explore alternative marketing strategies. This rule modifies §§ 946.143 and 946.336. Authority for the change in the order's rules and regulations is provided in § 946.52 of the order, while authority for reports and records is provided in § 946.70.

It is not anticipated that this rule will negatively impact small businesses. This rule temporarily exempts yellow fleshed and white types of potatoes from the minimum quality, maturity, pack, marking, and inspection requirements contained in the order's handling regulations. While inspections are not mandatory for such potatoes during the exemption period, handlers may choose to voluntarily have their potatoes inspected. Handlers are thus able to control costs based on the demands of their customers. The opportunities and benefits of this rule are equally available to all Washington potato handlers and producers, regardless of their size.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, Generic Vegetable and Specialty Crops.

This rule requires the submission of a monthly handler report for fresh yellowfleshed and white types potatoes handled during the exemption period. This rule modified the Russet Fresh Potato Report established for russet type potatoes to include yellow fleshed and white types of potatoes during the period those types of potatoes are exempted from regulation. The modified Self-Reporting Potato Form will provide the Committee with information necessary to track shipments and collect assessments. AMS has submitted the modified form and a Justification of Change to OMB for approval.

While this rule requires a reporting requirement for yellow fleshed and white types of potatoes, their exemption from handling regulations also eliminates, for the exemption period, the more frequent reporting requirements imposed under the order's special purpose shipment exemptions (§ 946.336(d) and (e)). Under these paragraphs, handlers are required to provide detailed reports whenever they divert regulated potatoes for livestock feed, charity, seed, prepeeling, processing, grading and storing in specified counties in Oregon, and experimentation.

Therefore, any additional reporting or recordkeeping requirements on either small or large handlers of yellow fleshed and white types of potatoes are expected to be offset by the elimination of the other reporting requirements currently in effect. In addition, the temporary exemption from handling regulations and inspection requirements for yellow fleshed and white types of potatoes is expected to reduce industry expenses.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

The Committee's meetings were widely publicized throughout the Washington potato industry and all interested persons were invited to participate in Committee deliberations. All Committee meetings where this action was discussed were public meetings. All entities, both large and small, were able to express views on this issue.

Comments on the interim rule were required to be received on or before December 23, 2013. Three comments were received in response to the interim rule.

One comment supported exemption of yellow fleshed and white types of potatoes and urged similar action for red types of potatoes. An interim rule was published in theFederal Registeron February 12, 2014, (79 FR 8253) exempting red types of potatoes from the order's handling regulations.

A second comment raised concerns regarding the exemption of yellow fleshed and white types of potatoes with respect to Idaho State code and the sale of such potatoes in Idaho. Idaho State officials should be consulted regarding the application of state requirements, as applicable and as is appropriate.

The third comment was received from the Committee staff. The comment stated that on December 10, 2013, the Committee met to discuss the temporary exemption of yellow fleshed and white types of potatoes from the handling regulations. The comment further stated that, since October 24, 2013, the Committee has evaluated industry cost savings and the impact on the market resulting from the temporary exemption. No negative market impacts were experienced as a result of the temporary exemption of these potatoes from the handling regulations. Handlers have continued to meet their customers' specifications, either with voluntary inspection or with no inspection, during the temporary exemption. As a result, the Committee unanimously recommended extending the exemption period indefinitely. Such a recommendation would result in additional rulemaking.

Accordingly, for the reasons given in the interim rule, USDA is adopting the interim rule as a final rule, without change.

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in theFederal Register(78 FR 62967, October 23, 2013) will tend to effectuate the declared policy of the Act.

This final rule amends the Class I pricing provisions and the maximum administrative assessment for the Appalachian, Florida and Southeast marketing orders. This final rule also amends certain features of the diversion limit, touch-base and transportation credit provisions of the Appalachian and Southeast milk marketing orders. More than the required number of producers approved the issuance of the orders as amended.

The provisions adopted in this final rule: (1) Adjust the Class I pricing surface in each county within the geographical boundaries of the Appalachian, Florida and Southeast marketing orders; (2) Make diversion limit standards identical for the Appalachian and Southeast orders: 25 percent of deliveries to pool plants during the months of January, February, July, August, September, October, and November, and 35 percent in the months of March, April, May, June, and December; (3) Reduce touch-base standards to one day each month for the Appalachian and Southeast orders; (4) Add January and February as months when transportation credits are paid for the Appalachian and Southeast orders; (5) Provide for the payment of transportation credits in the Appalachian and Southeast orders for full loads of supplemental milk; (6)Provide more flexibility in the qualification requirements for supplemental milk producers to receive transportation credits for the Appalachian and Southeast orders; and (7) Increase the monthly transportation credit assessment from $0.20 per hundredweight (cwt) to $0.30 per (cwt) in the Southeast order. This final rule also increases the maximum administrative assessment for the Appalachian, Florida, and Southeast orders from $0.05 per cwt to $0.08 per cwt.

A partial tentative final decision concerning all of the proposed amendments except for increasing the administrative assessment rates was published in theFederal Register(73 FR 11194). Increasing the maximum administrative assessment was initially addressed in a separate partial recommended decision (73 FR 11062). No comments were received concerning this recommended decision. A final decision concerning all proposed amendments was published in theFederal Register(79 FR 12963). Accordingly, this final rule adopts proposed amendments detailed in the final decision (79 FR 12963).

Executive Orders 12866 and 13563

This administrative action is governed by the provisions of sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866 and 13563.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect. The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (Act), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

Executive Order 13175

This rule has been reviewed in accordance with Executive Order 13175, Consultation and Coordination With Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal Governments and will not have significant Tribal implications.

Regulatory Flexibility Act and Paperwork Reduction Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this rule would not have a significant economic impact on a substantial number of small entities. For the purposes of the Regulatory Flexibility Act, a dairy farm is considered a small business if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a small business if it has fewer than 500 employees.

For the purposes of determining which dairy farms are small businesses, the $750,000 per year criterion was used to establish a marketing guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most small dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.

During May 2007, the time of the hearing, there were 2,744 dairy farms pooled on the Appalachian order (Order 5). For the Southeast order (Order 7), 2,924 dairy farms were pooled on the order. For the Florida order (Order 6), 283 dairy farms were pooled on the order. Of these, 2,612 dairy farms in Order 5 (or 95.2 percent), 2,739 dairy farms in Order 7 (or 94 percent) and 153 dairy farms in Order 6 (or 54 percent) were considered small businesses.

During May 2007, there were a total of 36 plants associated with the Appalachian order (22 fully regulated plants, 10 partially regulated plants, 2 producer-handlers, and 2 exempt plants). A total of 55 plants were associated with the Southeast order (33 fully regulated plants, 9 partially regulated plants, 2 producer-handlers, and 11 exempt plants). A total of 25 plants were associated with the Florida order (13 fully regulated plants, 9 partially regulated plants, 1 producer-handler, and 2 exempt plants). The number of plants meeting small business criteria under the Appalachian, Southeast and Florida orders were 8 (or 22.2 percent), 18 (or 32.7 percent), and 11 (or 44 percent), respectively.

The adopted amendments in this final rule provide for an increase in Class I prices in the Appalachian, Southeast, and Florida orders (southeastern orders). The minimum Class I prices of the southeastern orders, as with all other Federal milk marketing orders, are set by using the higher of an advance Class III or Class IV price, as determined by USDA, and adding a location-specific differential, referred to as a Class I differential. Minimum Class I prices charged to regulated handlers are applied uniformly to both large and small entities. At the time of the hearing, the Department estimated that the proposed Class I price increases would generate higher marketwide pool values in all three southeastern orders of approximately $18-19 million for the Appalachian order, $17.5 million for the Southeast order, and $38 million for the Florida order, on a monthly basis. It was estimated that monthly minimum prices paid to dairy farmers (blend prices) would increase approximately $0.26 per cwt for the Appalachian order, $0.64 per cwt for the Southeast order, and $1.20 per cwt for the Florida order.

The Class I price increases were implemented on an interim basis effective May 1, 2008.1As a result of those increases, marketwide pool values were increased in 2011 by approximately $16 million in the Appalachian order, $38 million in the Florida order, and $16 million in the Southeast order. This resulted in an increase in 2011 monthly minimum prices paid to dairy farms of $0.25 per cwt for the Appalachian order, $1.25 per cwt in the Florida order, and $1.25 per cwt in the Southeast order.

1Official notice is taken of 73 FR 14153.

The adopted amendments revise the Appalachian and Southeast orders by making the diversion limit standards for the orders identical—not to exceed 25 percent for the months of January, February, and July through November, and 35 percent for the months of March through June and for the month of December. Prior to their interim adoption, the diversion limit standards of the Appalachian order for pool plants and cooperatives acting as handlers were not to exceed 25 percent for the months of July through November, and January and February; and 40 percentfor the months of December and March through June. For the Southeast order, the diversion limit standards for pool plants and cooperatives acting as handlers were not to exceed 33 percent during the months of July through December, and 50 percent in the months of January through June.

In addition, the adopted amendments establish identical touch-base standards of at least one days' milk production each month by a dairy farmer in the Appalachian and Southeast orders. Prior to their interim adoption, the Appalachian order had a touch-base standard of 6 days' production in any month of July through December and not less than 2 days' production in each of the months of January through June. Prior to their interim adoption, the Southeast order had a touch-base standard of not less than 10 days' production for the months of July through December and not less than 4 days' production for the months of January through June.

The adopted amendments to the pooling standards revise established criteria that determine those producers, producer milk and plants that have a reasonable association with and are consistently serving the fluid needs of the Appalachian and Southeast marketing areas. Criteria for pooling are established on the basis of performance levels that are considered adequate to meet the Class I needs and determine those producers who are eligible to share in the revenue that arises from the classified pricing of milk. The criteria for pooling are established without regard to the size of any dairy industry or entity. The criteria established are applied in an identical fashion to both large and small businesses and do not have any different economic impact on small entities as opposed to large entities.

The adopted amendments add January and February to the months of July though December as months when transportation credits may be paid to those handlers who incur the costs of providing supplemental milk for the Appalachian and Southeast orders. The amendments also expand the payment of transportation credits for supplemental milk to include the full load of milk rather than the calculated Class I portion and provide more flexibility in the qualification requirements for supplemental milk to receive transportation credits. In addition, the maximum monthly transportation credit assessment for the Southeast order is increased from the current $0.20 per cwt to $0.30 per cwt on all milk assigned to Class I use. The transportation credit provisions are applicable only to the Appalachian and Southeast orders and are applied in an identical fashion to both large and small businesses and will not have any different impact on those businesses producing manufactured milk products. The changes will not have a significant economic impact on a substantial number of small entities.

The adopted amendments also allow the Market Administrators of the Appalachian, Southeast, and Florida orders to increase the maximum administrative assessment from the current $0.05 per cwt to $0.08 per cwt if necessary to maintain adequate funds for the operation of the orders. Administrative assessments are charged without regard to the size of any dairy handler or entity.

The adopted amendments will affect all producers and handlers equally regardless of their size. Accordingly, the amendments will not have a significant economic impact on a substantial number of small entities.

A review of the reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that these amendments would have no impact on reporting, recordkeeping or other compliance requirements because they would remain identical to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary.

E-Government Act

The Agricultural Marketing Service (AMS) is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Prior Documents in This Proceeding

Notice of Hearing:Issued May 3, 2007; published May 8, 2007 (72 FR 25986).

Final Decision:Issued February 25, 2014; published March 7, 2014 (79 FR 12963).

Findings and Determinations

The findings and determinations hereinafter set forth supplement those that were made when the Appalachian, Florida and Southeast orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.

The following findings are hereby made with respect to the Appalachian, Florida, and Southeast marketing orders:

(a)Findings upon the basis of the hearing record.

A public hearing was held upon certain proposed amendments to the tentative marketing agreements and to the orders regulating the handling of milk in the Appalachian, Florida, and Southeast marketing areas. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (Act) (7 U.S.C. 601-674), and the applicable rules of practice and procedure (7 CFR part 900).

Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:

(1) The said orders as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

(2) The parity prices of milk, as determined pursuant to section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the aforesaid marketing areas. The minimum prices specified in the orders as hereby amended are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and

(3) The said orders, as hereby amended, regulate the handling of milk in the same manner as, and is applicable only to persons in the respective classes of industrial or commercial activity specified in, a marketing agreement upon which a hearing has been held.

(b)Additional Findings.The amendments to these orders are known to handlers. The final decision containing the proposed amendments to this order was issued on February 25, 2014 and published in theFederal Registeron March 7, 2014 (79 FR 12963).

The changes that result from these amendments will not require extensive preparation or substantial alteration in the method of operation for handlers. In view of the foregoing, it is hereby found and determined that good cause existsfor making these amendments effective following May 5, 2014. It would be contrary to the public interest to delay the effective date of these amendments for 30 days after their publication in theFederal Register.(Sec. 553(d), Administrative Procedures Act, 5 U.S.C. 551-559.)

(c)Determinations.It is hereby determined that:

(1) The refusal or failure of handlers (excluding cooperative associations specified in section 8c(9) of the Act) of more than 50 percent of the milk, which is marketed within the specified marketing areas, to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the Act;

(2) The issuance of this order amending the Appalachian, Florida, and Southeast orders is the only practical means pursuant to the declared policy of the Act of advancing the interests of producers as defined in the orders as hereby amended;

(3) The issuance of this order amending the Appalachian, Florida, and Southeast orders is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the respective marketing areas.

List of Subjects in 7 CFR Parts 1005, 1006 and 1007

Milk marketing orders.

Order Relative to Handling

It is therefore ordered,that on and after the effective date hereof, the handling of milk in the Appalachian, Florida, and Southeast marketing areas shall be in conformity to and in compliance with the terms and conditions of the orders, as amended, and as hereby amended, as follows:

The provisions of the order amending the orders contained in the interim amendments of the orders issued by the Administrator, Agricultural Marketing Service, on March 12, 2008, and published in theFederal Registeron March 17, 2008, (72 FR 14153) and as corrected in the correcting amendments issued May 6, 2008, and published May 9, 2008, (73 FR 26513) are adopted and shall be the terms and provisions of these orders.

For the reasons set forth in the preamble, 7 CFR parts 1005, 1006 and 1007 are amended as follows:

PART 1005—MILK IN THE APPALACHIAN MARKETING AREA2. Section 1005.85 is revised, to read as follows:§ 1005.85Assessment for order administration.

On or before the payment receipt date specified under § 1005.71, each handler shall pay to the market administrator itspro ratashare of the expense of administration to the order at a rate specified by the market administrator that is no more than $.08 per hundredweight with respect to:

(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) of this chapter that were delivered to pool plants of other handlers;

(b) Receipts from a handler described in § 1000.9(c) of this chapter;

(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) of this chapter and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and (8) of this chapter and the corresponding steps of § 1000.44(b) of this chapter, except other source milk that is excluded from the computations pursuant to § 1005.60(d) and (e); and

(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii) of this chapter.

PART 1006—MILK IN THE FLORIDA MARKETING AREA3. Section 1006.85 is revised to read as follows:§ 1006.85Assessment for order administration.

On or before the payment receipt date specified under § 1006.71, each handler shall pay to the market administrator itspro ratashare of the expense of administration of the order at a rate specified by the market administrator that is no more than $.08 per hundredweight with respect to:

(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) of this chapter that were delivered to pool plants of other handlers;

(b) Receipts from a handler described in § 1000.9(c) of this chapter;

(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) of this chapter and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and (8) chapter and the corresponding steps of § 1000.44(b) of this chapter, except other source milk that is excluded from the computations pursuant to § 1006.60(d) and (e); and

(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii) of this chapter.

PART 1007—MILK IN THE SOUTHEAST MARKETING AREA4. Section 1007.85 is revised, to read as follows:§ 1007.85Assessment for order administration.

On or before the payment receipt date specified under § 1007.71, each handler shall pay to the market administrator itspro ratashare of the expense of administration of the order at a rate specified by the market administrator that is no more than $.08 per hundredweight with respect to:

(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) of this chapter that were delivered to pool plants of other handlers;

(b) Receipts from a handler described in § 1000.9(c) of this chapter;

(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) of this chapter and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and (8) of this chapter and the corresponding steps of § 1000.44(b) of this chapter, except other source milk that is excluded from the computations pursuant to § 1007.60(d) and (e); and

(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii) of this chapter.

This final rule amends the transportation credit balancing fund provisions and pooling provisions of the Appalachian and Southeast orders. More than the required number of producers for the Appalachian and Southeast marketing areas approved the issuance of the orders as amended.

This final rule amends the transportation credit balancing fund provisions and pooling provisions of the Appalachian and Southeast orders. The transportation credit assessment rate for the Southeast order, adopted on an interim basis in this proceeding (71 FR 62377) was subsequently increased in a separate proceeding (73 FR 14153).1Accordingly, increases to the Southeast order transportation credit assessment rate considered in this proceeding are no longer addressed.

This administrative rule is governed by the provisions of sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866 and 13563.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. The Agricultural Marketing Agreement Act of 1937, as amended (Act) (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that the District Court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

Executive Order 13175

This rule has been reviewed in accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this rule will not have substantial and direct effects on Tribal Governments and will not have significant Tribal implications.

Regulatory Flexibility Act and Paperwork Reduction Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities and has certified that this rule will not have a significant economic impact on a substantial number of small entities. For the purpose of the Regulatory Flexibility Act, a dairy farm is considered a “small business” if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a “small business” if it has fewer than 500 employees.

For the purposes of determining which dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a marketing guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most “small” dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the handler will be considered a large business even if the local plant has fewer than 500 employees.

During January 2006, the time of the hearing, there were 3,055 dairy farms pooled on the Appalachian order (Order 5) and 3,367 dairy farms pooled on the Southeast order (Order 7). Of these, 2,889 dairy farms (95 percent) in Order 5 and 3,218 dairy farms (96 percent) in Order 7 were considered small businesses.

During January 2006, the time of the hearing, there were a total of 37 handlers operating plants associated with the Appalachian order (22 fully regulated plants, 11 partially regulated plants, 2 producer-handlers and 2 exempt plants). A total of 52 plants were associated with the Southeast order (31 fully regulated plants, 9 partially regulated plants and 12 exempt plants). The number of plants meeting the small business criteria under the Appalachian and Southeast orders were 9 (24 percent) and 18 (35 percent), respectively.

The amendments adopted in this rule revise the transportation credit provisions of the Appalachian and Southeast orders. The Appalachian and Southeast orders contain provisions for a transportation credit balancing fund. To partially offset the costs of transporting supplemental milk into each marketing area to meet fluid milk demand at distributing plants during the months of July through December, handlers are charged an assessment year-round to generate revenue used to make payments to qualified handlers.

The adopted amendments establish a variable mileage rate factor that will be adjusted monthly by changes in the price of diesel fuel (a fuel cost adjustor) as reported by the Department of Energy for paying claims from the transportation credit balancing funds of the Appalachian and Southeast orders. Prior to their interim adoption, the mileage rate of both orders was fixed at $0.35 per cwt per mile.

The adopted amendments increase the transportation credit assessment rate for the Appalachian order. Specifically, the maximum assessment rate for the Appalachian order is increased to $0.15 per cwt. The transportation credit assessment rate for the Southeast order is increased by actions taken in a separate rulemaking (73 FR 14153). The higher assessment rate is intended to minimize the proration and depletion ofthe order's transportation credit balancing fund during those months when supplemental milk is needed. The higher assessment rate for the Appalachian order adopted in this decision is necessary due to expected higher mileage reimbursement rates arising from escalating fuel costs, the transporting of milk over longer distances and the expected continuing need to rely on supplemental milk supplies arising from declining local milk production in the marketing areas.

The transportation credit assessment rate for the Southeast order was increased from $0.10 per cwt to $0.20 per cwt on an interim basis (71 FR 62377). Subsequent to this increase, a separate rulemaking affecting the Southeast order proposed an additional increase in the assessment rate to $0.30 per cwt. A final decision (79 FR 12985), published March 7, 2014, describes the record evidence supporting a $0.30 per cwt transportation credit assessment rate. The $0.30 per cwt assessment rate was adopted on an interim basis (73 FR 14153) effective March 18, 2008. Since these separate decisions address the higher assessment rate, there is no further consideration to this issue in this proceeding.

The adopted amendments also amend theProducer milkprovisions of the Appalachian and Southeast orders by eliminating the pooling of diverted milk associated with supplemental milk receiving a transportation credit payment. Prior to amendments adopted on an interim basis, the Appalachian and Southeast orders provided transportation credits on supplemental shipments of milk for Class I use provided the milk was from dairy farmers who are not defined as a “producer” under the orders. A producer under the order is defined as a dairy farmer who: (1) During the immediately preceding months of March through May and not more than 50 percent of the milk production of the dairy farmer, in aggregate, is received as producer milk by either order during those 3 months; and (2) produced milk on a farm not located within the specified marketing areas of either order. The provisions of each order provide the market administrator the discretionary authority to adjust the 50 percent milk production standard to assure orderly marketing and efficient handling of milk in the marketing areas.

Adoption of the amendments will be applied to all Appalachian and Southeast order handlers and producers, which consist of both large and small businesses. The adopted amendments will affect all producers and handlers equally regardless of their size. Accordingly, the amendments will not have a significant economic impact on a substantial number of small entities.

A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that these amendments would have no impact on reporting, recordkeeping, or other compliance requirements because they would remain identical to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary.

E-Government Act

The Agricultural Marketing Service (AMS) is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increase opportunities for citizen access to Government information and services, and for other purposes.

Prior Documents in This Proceeding

Notice of Hearing:Issued December 22, 2005; published December 28, 2005 (70 FR 76718).

Interim Final Rule:Issued October 19, 2006; published October 25, 2006 (71 FR 62377).

Final Partial Decision:Issued February 25, 2014; published March 7, 2014 (79 FR 12985).

Findings and Determinations

The findings and determinations hereinafter set forth supplement those that were made when the Appalachian and Southeast orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.

The following findings are hereby made with respect to the Appalachian and Southeast orders:

(a)Findings upon the basis of the hearing record.Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900), a public hearing was held in regard to certain proposed amendments to the tentative marketing agreement and to the order regulating the handling of milk in the Appalachian and Southeast marketing areas.

Upon the basis of the evidence introduced at such hearing and the record thereof it is found that:

(1) The Appalachian and Southeast orders, as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

(2) The parity prices of milk, as determined pursuant to section 2 of the Act, are not reasonable in view of the price of feed, available supplies of feed, and other economic conditions which affect market supply and demand for milk in the marketing area, and the minimum prices specified in the orders, as hereby amended, are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and

(3) The Appalachian and Southeast orders, as hereby amended, regulate the handling of milk in the same manner as, and is applicable only to persons in the respective classes of industrial and commercial activity specified in, a marketing agreement upon which a hearing has been held.

The amendments to these orders are known to handlers. A final partial decision containing the proposed amendments to these orders was issued on February 25, 2014. An interim final rule adopting these transportation credit balancing fund and diversion limit standards on an interim basis was issued on October 19, 2006, and published on October 25, 2006 (71 FR 62377).

Accordingly, the changes that result from these amendments will not require extensive preparation or substantial alteration in the method of operation for handlers. In view of the foregoing, it is hereby found and determined that good cause exists for making these order amendments effective May 5, 2014. It would be contrary to the public interest to delay the effective date of these amendments for 30 days after their publication in theFederal Register. (Sec. 553(d), Administrative Procedure Act, 5 U.S.C. 551-559.)

(c)Determinations.It is hereby determined that:

(1) The refusal or failure of handlers (excluding cooperative associations specified in Sec. 8c(9) of the Act) of more than 50 percent of the milk that is marketed within the specified marketing area to sign a proposed marketing agreement tends to prevent the effectuation of the declared policy of the Act;

(2) The issuance of the order amending the Appalachian and Southeast orders is the only practical means pursuant to the declared policy of the Act of advancing the interests of producers as defined in the order as hereby amended;

(3) The issuance of the order amending the Appalachian and Southeast orders is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the marketing area.

List of Subjects in 7 CFR Parts 1005 and 1007

Milk marketing orders.

Order Relative to Handling

It is therefore ordered,that on and after the effective date hereof, the handling of milk in the Southeast and Appalachian marketing areas shall be in conformity to and in compliance with the terms and conditions of the orders, as amended, and as hereby amended, as follows:

1. The authority citation for 7 CFR parts 1005 and 1007 continues to read as follows:Authority:

7 U.S.C. 601-674, and 7253.

PART 1005—MILK IN THE APPALACHIAN MARKETING AREA2. Section 1005.13 is amended by revising paragraphs (d)(3) and (d)(4) to read as follows:§ 1005.13Producer milk.

(d) * * *

(3) The total quantity of milk so diverted during the month by a cooperative association shall not exceed 25 percent during the months of July through November, January, and February, and 35 percent during the months of December and March through June, of the producer milk that the cooperative association caused to be delivered to, and physically received at, pool plants during the month, excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in § 1005.82(c)(2)(ii) and (iii), and for which a transportation credit is requested;

(4) The operator of a pool plant that is not a cooperative association may divert any milk that is not under the control of a cooperative association that diverts milk during the month pursuant to paragraph (d) of this section. The total quantity of milk so diverted during the month shall not exceed 25 percent during the months of July through November, January, and February, and 35 percent during the months of December and March through June, of the producer milk physically received at such plant (or such unit of plants in the case of plants that pool as a unit pursuant to § 1005.7(e)) during the month, excluding the quantity of producer milk received from a handler described in § 1000.9(c) of this chapter and excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in § 1005.82(c)(2)(ii) and (iii), and for which a transportation credit is requested;

3. Section 1005.81 is revised to read as follows:§ 1005.81Payments to the transportation credit balancing fund.

(a) On or before the 12th day after the end of the month (except as provided in § 1000.90 of this chapter), each handler operating a pool plant and each handler specified in § 1000.9(c) shall pay to the market administrator a transportation credit balancing fund assessment determined by multiplying the pounds of Class I producer milk assigned pursuant to § 1005.44 by $0.15 per hundredweight or such lesser amount as the market administrator deems necessary to maintain a balance in the fund equal to the total transportation credits disbursed during the prior June-February period. In the event that during any month of the June-February period the fund balance is insufficient to cover the amount of credits that are due, the assessment should be based upon the amount of credits that would had been disbursed had the fund balance been sufficient.

(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90) the assessment pursuant to paragraph (a) of this section for the following month.

4. Section 1005.82 is amended by revising paragraphs (d)(2)(ii) and (d)(3)(iv) to read as follows:§ 1005.82Payments from the transportation credit balancing fund.

(d) * * *

(2) * * *

(ii) Multiply the number of miles so determined by the mileage rate for the month computed pursuant to § 1005.83(a)(6);

(3) * * *

(iv) Multiply the remaining miles so computed by the mileage rate for the month computed pursuant to § 1005.83(a)(6);

(a) The market administrator shall compute a mileage rate each month as follows:

(1) Compute the simple average rounded to three decimal places for the most recent four (4) weeks of the Diesel Price per Gallon as reported by the Energy Information Administration of the United States Department of Energy for the Lower Atlantic and Gulf Coast Districts combined.

(2) From the result in paragraph (a)(1) in this section subtract $1.42 per gallon;

(3) Divide the result in paragraph (a)(2) of this section by 5.5, and round down to three decimal places to compute the fuel cost adjustment factor;

(4) Add the result in paragraph (a)(3) of this section to $1.91;

(5) Divide the result in paragraph (a)(4) of this section by 480;

(6) Round the result in paragraph (a)(5) of this section down to five decimal places to compute the mileage rate.

(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90 of this chapter) the mileage rate pursuant to paragraph (a) of this section for the following month.

PART 1007—MILK IN THE SOUTHEAST MARKETING AREA6. Section 1007.13 is amended by revising paragraphs (d)(3) and (d)(4) to read as follows:§ 1007.13Producer milk.

(d) * * *

(3) The total quantity of milk diverted during the month by a cooperative association shall not exceed 25 percent during the months of July through November, January, and February, and 35 percent during the months of December and March through June, of the producer milk that the cooperative association caused to be delivered to, and physically received at, pool plants during the month, excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in § 1007.82(c)(2)(ii) and (iii), and for which a transportation credit is requested;

(4) The operator of a pool plant that is not a cooperative association may divert any milk that is not under the control of a cooperative association that diverts milk during the month pursuant to paragraph (d) of this section. The total quantity of milk so diverted during the month shall not exceed 25 percent during the months of July throughNovember, January and February, and 35 percent during the months of December and March through June of the producer milk physically received at such plant (or such unit of plants in the case of plants that pool as a unit pursuant to § 1007.7(e)) during the month, excluding the quantity of producer milk received from a handler described in § 1000.9(c) of this chapter, excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in § 1007.82(c)(2)(ii) and (iii), and for which a transportation credit is requested.

7. Section 1007.81 is amended by revising paragraph (b) to read as follows:§ 1007.81Payments to the transportation credit balancing fund.

(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90 of this chapter) the assessment pursuant to paragraph (a) of this section for the following month.

8. Section 1007.82 is amended by revising paragraphs (d)(2)(ii) and (d)(3)(iv) to read as follows:§ 1007.82Payments from the transportation credit balancing fund.

(d) * * *

(2) * * *

(ii) Multiply the number of miles so determined by the mileage rate for the month computed pursuant to § 1007.83(a)(6);

(3) * * *

(iv) Multiply the remaining miles so computed by the mileage rate for the month computed pursuant to § 1007.83(a)(6);

(a) The market administrator shall compute the mileage rate each month as follows:

(1) Compute the simple average rounded to three decimal places for the most recent 4 weeks of the Diesel Price per Gallon as reported by the Energy Information Administration of the United States Department of Energy for the Lower Atlantic and Gulf Coast Districts combined.

(2) From the result in paragraph (a)(1) in this section subtract $1.42 per gallon;

(3) Divide the result in paragraph (a)(2) of this section by 5.5, and round down to three decimal places to compute the fuel cost adjustment factor;

(4) Add the result in paragraph (a)(3) of this section to $1.91;

(5) Divide the result in paragraph (a)(4) of this section by 480;

(6) Round the result in paragraph (a)(5) of this section down to five decimal places to compute the mileage rate.

(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90 of this chapter) the mileage rate pursuant to paragraph (a) of this section for the following month.

In this document, the Federal Housing Finance Agency (FHFA) provides notice that it issued Orders to supplement its Orders dated November 26, 2013 and December 13, 2013, with respect to the Federal National Mortgage Association and Federal Home Loan Mortgage Corporation reporting results under section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

FHFA is responsible for ensuring that the regulated entities operate in a safe and sound manner, including the maintenance of adequate capital and internal controls, that their operations and activities foster liquid, efficient, competitive, and resilient national housing finance markets, and that they carry out their public policy missions through authorized activities.See12 U.S.C. 4513. These Supplemental Orders are being issued under 12 U.S.C. 4514(a), which authorizes the Director of FHFA to require by Order that the regulated entities submit regular or special reports to FHFA and establishes remedies and procedures for failing to make reports required by Order. The Supplemental Orders provide to the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation a revised template to use in reporting to the public the severely adverse results of their respective stress tests.

II. Orders

For the convenience of the affected parties, the text of the Orders, without appendices, follows below in its entirety. You may access these Orders with Appendices 11 and 12 from FHFA's Web site athttp://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Issues-Scenarios-and-Guidance-to-FannieMae,-Freddie-Mac-and-the-Federal-Home-Loan-Banks-Regarding-Annual-Dodd-Frank-St.aspx.The Orders will be available for public inspection and copying at the Federal Housing Finance Agency, Eighth Floor, 400 Seventh St. SW., Washington, DC 20024. To make an appointment, call (202) 649-3804.

The text of the Supplemental Orders is as follows:

Federal Housing Finance AgencyOrder Nos. 2014-OR-FNMA-1, and 2014-OR-FHLMC-1SUPPLEMENTAL ORDER ON REPORTING BY REGULATED ENTITIES OF STRESS TESTING RESULTS AS OF SEPTEMBER 30, 2013

Whereas,section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) requires certain financial companies with total consolidated assets of more than $10 billion, and which are regulated by a primary Federal financial regulatory agency, to conduct annual stress tests to determine whether the companies have the capitalnecessary to absorb losses as a result of adverse economic conditions;

Whereas,FHFA's rule implementing section 165(i)(2) of the Dodd-Frank Act is codified as 12 CFR part 1238 and requires that “[e]ach regulated entity must file a report in the manner and form established by FHFA.” 12 CFR § 1238.5(b);

Whereas,on November 26, 2013, FHFA issued an Order to each regulated entity accompanied by appendices numbered 1 through 10 and amended Summary Instructions and Guidance relating to the performance of stress tests as of September 30, 2013, and the reporting of the results of such tests;

Whereas,on December 13, 2013, FHFA issued a Supplemental Order to each regulated entity providing two additional appendices for use in reporting stress testing results as of September 30, 2013;

Whereas,the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation timely submitted its stress test results pursuant to 12 CFR part 1238 and the implementing Orders, instructions, and guidance;

Whereas,after analyzing the results of the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation stress testing and the methodologies and practices used in testing, pursuant to 12 CFR § 1238.4(c), FHFA required the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation to implement alternative stress testing techniques and exercises before publication of any results;

Whereas,FHFA has determined that the Federal National Mortgage Association's and the Federal Home Loan Mortgage Corporation's public reporting of the severely adverse results should reflect the alternative techniques and exercises required; and

Whereas,section 1314 of the Safety and Soundness Act, 12 U.S.C. § 4514(a) authorizes the Director of FHFA to require regulated entities, by general or specific order, to submit such reports on their management, activities, and operations as the Director considers appropriate.

Now Therefore,it is hereby ordered as follows:

The Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation shall publicly report as required by 12 CFR part 1238 the severely adverse results of the required stress testing using the template provided herewith as Attachment 1.

This Order is effective immediately.

Signed at Washington, DC, this 28th day of April 2014.Melvin L. Watt,Director, Federal Housing Finance Agency.Dated: April 28, 2014.Melvin L. Watt,Director, Federal Housing Finance Agency.[FR Doc. 2014-10127 Filed 5-1-14; 8:45 am]BILLING CODE 8070-01-PDEPARTMENT OF DEFENSEDepartment of the Navy32 CFR Part 706Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea, 1972AGENCY:

Department of the Navy, DoD.

ACTION:

Final rule.

SUMMARY:

The Department of the Navy (DoN) is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) has determined that USS NORTH DAKOTA (SSN 784) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.

DATES:

This rule is effective May 2, 2014 and is applicable beginning April 16, 2014.

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR Part 706.

This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS NORTH DAKOTA (SSN 784) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 2(a)(i), pertaining to the vertical placement of the masthead light; Annex I, Section 2(f)(i), pertaining to Virginia class submarine masthead light location below the submarine identification lights; Annex I, paragraph 2(k), pertaining to the vertical separation of the anchor lights and vertical placement of the forward anchor light above the hull; Rule 30 (a) and Rule 21 (e), pertaining to arc of visibility of the forward and after anchor lights; Annex I, paragraph 3(b), pertaining to the location of the sidelights; and Rule 21(c), pertaining to the location and arc of visibility of the sternlight. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

List of Subjects in 32 CFR Part 706

Marine safety, Navigation (water), and Vessels.

For the reasons set forth in the preamble, the DoN amends part 706 of title 32 of the Code of Federal Regulations as follows:

PART 706—CERTIFICATIONS AND EXEMPTIONS UNDER THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 19721. The authority citation for part 706 continues to read as follows:Authority:

33 U.S.C. 1605.

2. Section 706.2 is amended as follows:a. In Table One by adding, in alpha numerical order, by vessel number, an entry for USS NORTH DAKOTA (SSN 784);b. In Table Three by adding, in alpha numerical order, by vessel number, an entry for USS NORTH DAKOTA (SSN 784);c. In Table Four, under paragraph 25, add, in alpha numerical order, by vessel number, an entry for USS NORTH DAKOTA (SSN 784); andd. In Table Four, under paragraph 26, add, in alpha numerical order, by vessel number, an entry for USS NORTH DAKOTA (SSN 784).§ 706.2Certifications of the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605.Table OneVesselNumberDistance in meters of forward masthead light below minimum

The Coast Guard will enforce the Sea World San Diego 2014 Firework safety zone on May 24 through May 26, May 31, June 1, June 7, June 8, June 13 through June 30, July 1 through July 31, August 1 through August 17, August 22 through August 24, August 29 through August 31, September 1 and September 6, 2014. These recurring annual summer firework display events occur on the navigable waters of Mission Bay in San Diego, California. This action is necessary to provide for the safety of the marine event crew, spectators, safety vessels, and general users of the waterway. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative.

DATES:

This rule is effective from 8:50 p.m. to 10 p.m. on May 24 through May 26, May 31, June 1, June 7 through June 8, June 13 through June 30, July 1 through July 31, August 1 through August 17, August 22 through August 24, August 29 through August 31, September 1 and September 6, 2014.

The Coast Guard will enforce the safety zone in Mission Bay for the Sea World San Diego 2014 Summer Fireworks, listed in 33 CFR 165.1123, Table 1, Item 7 from 8:50 p.m. to 10:00 p.m.

Under the provisions of 33 CFR 165.1123, persons and vessels are prohibited during the fireworks display times from entering into, transiting through, or anchoring within the 600 foot regulated area safety zone around the fireworks barge, located in approximate position 32°46′03″ N, 117°13′11″ W, unless authorized by the Captain of the Port, or his designated representative. Persons or vessels desiring to enter into or pass through the safety zone may request permission from the Captain of the Port or a designated representative. The Coast Guard Captain of the Port or designated representative can be reached via VHF CH 16 or at (619) 278-7033. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or designated representative. Spectator vessels may safely transit outside the regulated area, but may not anchor, block, loiter, or impede the transit of official fireworks support, event vessels or enforcement patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 5 U.S.C. 552(a) and 33 CFR 165.1123. In addition to this notice in theFederal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor.

If the Coast Guard determines that the regulated area need not be enforced for the full duration stated on this notice, then a Broadcast Notice to Mariners or other communications coordinated with the event sponsor will grant general permission to enter the regulated area.

The Copyright Royalty Judges affirm adoption of the final regulation for filing notice of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act. The purpose of this affirmation is to remove any doubt about the effectiveness of the final regulation in light of a ruling by the United States Court of Appeals for the District of Columbia Circuit regarding the constitutionality of the manner in which the Copyright Royalty Judges were appointed.

On October 6, 2006, the Copyright Royalty Judges (Judges) issued interim regulations published in theFederal Registerfor the delivery and format of reports of use of sound recordings for the statutory licenses set forth in sections 112 and 114 of the Copyright Act. 71 FR 59010. The goal of those interim regulations was to establish format and delivery requirements for reports of use so that royalty payments to copyright owners pursuant to the section 112 and 114 licenses could be made from April 1, 2004, forward based upon actual data on the sound recordings transmitted by digital audio services. During the period after the Judges issued the interim regulations, the Judges monitored the operation of these regulations as well as developments in recordkeeping requirements agreed upon by parties to various settlements relating to the use of the section 112 and 114 licenses.

On December 30, 2008, the Judges published a notice of proposed rulemaking (NPRM) setting forth proposed revisions to the interim regulations adopted in October 2006. 73 FR 79727. The most significant revision proposed by the Judges was to expand the reporting period to implement year-round census reporting. Further, on April 8, 2009, the Judges published a notice of inquiry (NOI) to obtain additional information concerning the likely costs and benefits stemming from the adoption of the proposed census reporting provision as well as information on any alternatives to the proposal that might accomplish the same goals as the proposal in a less burdensome way, particularly with respect to small entities. 74 FR 15901.

On October 13, 2009, the Judges published a final rule amending the interim regulations and establishing requirements for census reporting for all but those broadcasters who pay no more than the minimum fee for their use of the license. 74 FR 52418. The Judges adopted the regulations substantially as proposed in the NPRM with minor modifications in response to comments received. The final regulations established requirements by which copyright owners may receive reasonable notice of the use of their sound recordings and under which records of use were to be kept and made available by entities of all sizes performing sound recordings.See, e.g.,17 U.S.C. 114 (f)(4)(A). As with the interim regulations adopted in 2006, the final regulations adopted in 2009 represented baseline requirements. In other words, digital audio services remained free to negotiate other formats and technical standards for data maintenance and delivery and to use those in lieu of regulations adopted by the Judges, upon agreement with the Collective. The Judges indicated that they had no intention of codifying these negotiated variances in the future unless and until they come into such standardized use as to effectively supersede the existing regulations.

On October 28, 2009, College Broadcasters, Inc. (CBI), American Council on Education and Intercollegiate Broadcasting Systems, Inc. (collectively, Petitioners) made a motion with the Judges for clarification with respect to one issue raised by the final regulation. Petitioners noted that the final regulation exempted minimum-fee webcasters that are FCC-licensed broadcasters from the census reporting requirement, but did not appear to exempt minimum-fee educational stations that are not FCC-licensed broadcasters from the same requirement. Petitioners asked the Judges to “clarify” that the exemption extended to minimum fee unlicensed educational stations.

On November 12, 2009, before the Judges ruled on this motion, CBI filed a Petition for Review of the final regulation with the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) (Appeal No. 09-1276). This appeal was held in abeyance pending the outcome of an appeal of the Judges' final determination in Docket No. 2009-1 CRB Webcasting III. The D.C. Circuit concluded that appeal on July 6, 2012, holding that the manner by which the Judges were appointed was unconstitutional, and dictating a statutory remedy.Intercollegiate Broad. Sys.v.Copyright Royalty Bd.,684 F.3d 1332, 1340-41 (D.C. Cir. 2012),cert. denied,133 S. Ct. 2735 (2013). The D.C. Circuit remanded the final determination to the Judges,1and also transferred CBI's appeal to the United States District Court for the District of Columbia.See Orderin Appeal No. 09-1276 (D.C. Cir. October 28, 2013).

In light of the foregoing proceedings, the Judges recognize the need to clarify the effectiveness of the final regulation. Consequently, the Judges performed ade novoreview of the comments underlying the final regulation and affirm the adoption of this regulation as published at 74 FR 52418 on October 11, 2009, in its entirety and without change (including the reasons set forth in the preamble thereto), thereby removing any doubt as to the effectiveness of the final regulation. Such affirmation also ensures the continuous effectiveness of the rules concerning notice and recordkeeping for users of copyrighted sound recordings.

On October 21, 2013, the Judges received a petition from SoundExchange seeking modifications to the notice and recordkeeping final regulation. The Judges will address the Petitioner's motion for clarification, as well as SoundExchange's petition, in a separate notice also published today in theFederal Register.

List of Subjects in 37 CFR Part 370

Copyright, Sound recordings.

Final Regulation

For the reasons set forth in the foregoing preamble, the Copyright Royalty Judges affirm adoption of the final rule revising 37 CFR part 370, which was published at 74 FR 52418 on October 13, 2009, without change.

The Environmental Protection Agency (EPA) is taking a direct final action to approve a maintenance plan for the Central Puget Sound area to maintain the 8-hour ozone National Ambient Air Quality Standard (NAAQS) through 2015. This plan was submitted by the Washington Department of Ecology (Ecology or “the State”) as a revision to its State Implementation Plan (SIP) on January 10, 2008. This action finds that the maintenance plan for this area meets all relevant Clean Air Act (CAA) requirements for approval, and demonstrates that the Central Puget Sound area will remain in attainment with the 1997 and 2008 ozone NAAQS through 2015.

DATES:

This rule is effective on July 1, 2014, without further notice, unless the EPA receives adverse comment by June 2, 2014. If the EPA receives adverse comment, we will publish a timely withdrawal in theFederal Registerinforming the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R10-OAR-2008-0122, by any of the following methods:

Instructions:Direct your comments to Docket ID No. EPA-R10-OAR-2008-0122. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going throughwww.regulations.govyour email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket:All documents in the docket are listed in thewww.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy during normal business hours at the Office of Air, Waste and Toxics, U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101.

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:

Table of ContentsI. BackgroundA. Regulatory ContextB. Requirements of CAA Section 110(a)(1) Maintenance PlansC. How have the Tribal Governments been involved in this process?II. Summary of SIP Revision and the EPA's EvaluationIII. Final ActionIV. Statutory and Executive Order ReviewsI. BackgroundA. Regulatory Context

On November 15, 1990, the CAA Amendments of 1990 were enacted. Under section 107(d)(1) of the CAA, the EPA designated the Central Puget Sound area, also called the Seattle-Tacoma area (which includes all of Pierce County, almost all of King County except the northeast corner, and part of Snohomish County), as nonattainment because the area violated the 1-hour ozone standard during the years 1989-1991. As a result, the EPA classified the Central Puget Sound area as “marginal” under section 181(a)(1) of the CAA (56 FR 56847, November 6, 1991). On January 28, 1993, the State of Washington submitted a SIP demonstrating compliance with the 1-hour ozone NAAQS. On August 21, 1995, the State submitted a revision to the Washington Vehicle Inspection and Maintenance (I/M) Program to satisfy the requirements of sections 182(b)(4) and 182(c)(3) of the CAA and 40 CFR part 51, subpart S. This SIP revision requires vehicle owners in the Central Puget Sound area to comply with the Washington I/M program. The EPA approved this I/M program revision on September 25, 1996 (61 FR 50235). On March 4, 1996, the State submitted to the EPA a request to redesignate the Central Puget Sound area to attainment for the 1-hour ozone standard, and a maintenance plan demonstrating maintenance of the ozone standard through 2010. On September 26, 1996, the EPA determined that the Puget Sound area had attained the ozone NAAQS, redesignated the Central Puget Sound area to attainment for the 1-hour ozone NAAQS, and approved the associated maintenance plan (61 FR 50438). On December 17, 2003, Ecology submitted a second 10-year maintenance plan demonstrating that the Central Puget Sound area would maintain air quality standards for ozone through the year 2016. The EPA approved the second 10-year maintenance plan on August 5, 2004 (69 FR 47365).

In 2008, the EPA revised the level of the 8-hour ozone standard to 0.075 ppm (73 FR 16436, March 27, 2008). The Central Puget Sound area was subsequently designated attainment/unclassifiable for the new 8-hour standard (77 FR 30088, May 21, 2012).

B. Requirements of CAA Section 110(a)(1) Maintenance Plans

Section 110(a)(1) of the CAA requires, in part, that states submit to the EPA plans to maintain any NAAQS promulgated by the EPA. Areas like the Central Puget Sound area that were maintenance areas for the 1-hour ozone NAAQS, but unclassifiable/attainment for the 8-hour ozone NAAQS, are required to submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS. The EPA established a deadline of three years after the effective date of the 1997 8-hour ozone designations as the deadline for submission of these plans.

On May 20, 2005, the EPA issued guidance for States in preparing maintenance plans under section 110(a)(1) of the CAA for areas that are required to do so under 40 CFR 51.905.1At a minimum, the maintenance plan should include the following five components:

1. An attainment inventory, which is based on actual typical summer day emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NOX) from a base year chosen by the State;

2. A maintenance demonstration which shows how the area will remain in compliance with the 8-hour ozone standard for 10 years after the effective date of the designation;

3. A commitment to continue to operate ambient air quality monitors to verify maintenance of the 8-hour ozone standard;

4. A contingency plan that will ensure that any violation of the 8-hour ozone NAAQS will be promptly corrected; and

5. An explanation of how the State will verify continued attainment of the standard under the maintenance plan.

On January 10, 2008, the EPA received a SIP submittal from Ecology to approve a maintenance plan submitted under section 110(a)(1) of the CAA to maintain the 8-hour NAAQS for ozone for the Central Puget Sound area. The EPA prepared a Technical Support Document (TSD) with more detailed information about this SIP submittal,which is available for review as part of the docket for this action.

C. How have the Tribal Governments been involved in this process?

Consistent with the EPA's tribal policy, the EPA offered government-to-government consultations to the Tulalip Tribes, the Puyallup Tribe of Indians, the Muckleshoot Indian Tribe, the Stillaguamish Tribe, and the Nisqually Indian Tribe, regarding the action in this notice, because these tribes are located in the Central Puget Sound ozone area and may be affected by this action.

II. Summary of SIP Revision and the EPA's Evaluation

Ecology's 8-hour 110(a)(1) ozone maintenance plan for the Central Puget Sound area addresses all five maintenance plan components outlined in the EPA's guidance of May 20, 2005. All of the 1-hour ozone control measures previously approved into the SIP for the Central Puget Sound area remain in place in this 8-hour 110(a)(1) maintenance plan and are used in the maintenance demonstration. The five components of the maintenance plan and how they meet the EPA's criteria, are described below.

1. Attainment Inventory

An emissions inventory is an itemized list of emission estimates for sources of air pollution in a given area for a specified time period. An attainment inventory is a projection of an emission inventory in a base year, when an area was in attainment with the 8-hour ozone NAAQS, to an appropriate attainment year. Ecology provided a comprehensive base year emissions inventory for NOXand VOCs for the Central Puget Sound area with the SIP submittal. Ecology chose to use 2002 as the base year from which it projected emissions. The SIP submittal also includes an explanation of the methodology used for determining the anthropogenic (point, area and mobile sources) emissions of NOXand VOCs. On-road vehicle emission controls required by the State I/M program were included in the attainment inventory. The inventory is based on emissions on a “typical summer day.” The term “typical summer day” refers to a typical weekday during the months when ozone concentrations are typically the highest. Based on our review of the documentation submitted, the EPA concludes that the attainment inventory has been developed for the appropriate season of an acceptable attainment year, is based on appropriate factors and methods, and is thus acceptable for the purposes of a Section 110(a)(1) ozone maintenance plan.

2. Maintenance Demonstration

The key element of a Section 110(a)(1) ozone maintenance plan is a demonstration of how an area will remain in compliance with the 8-hour ozone standard for the 10-year period following the effective date of designation as unclassifiable/attainment. The end projection year is 10 years from the effective date of the 8-hour attainment designation, which for the Central Puget Sound area was June 15, 2004 (69 FR 23858). Therefore, this plan must demonstrate attainment through year 2014. Ecology has projected emissions for the year 2015, which is more than 10 years from the effective date of initial designations. With regard to demonstrating continued maintenance of the 8-hour ozone standard, Ecology projected that the total emissions of ozone precursors in the Central Puget Sound area will significantly decrease from 2002 (the base year) through 2015. In 2002, the total anthropogenic emissions of VOCs in the Central Puget Sound area were 474 tons/day, and 446 tons/day for NOX. The 2015 anthropogenic emissions from the Central Puget Sound area are projected to be 346 tons/day for VOCs, and 411 tons/day for NOX. Thus, the total emissions of VOCs in 2015 are projected to be about 27% lower than the 2002 level, and total NOXemissions in 2015 are projected to be about 8% lower than the 2002 level.

The formation of ozone is dependent on a number of variables which cannot be estimated only through emissions growth and reduction calculations. These variables include weather and the transport of ozone precursors from outside the maintenance area. In order to demonstrate continued maintenance of the standards, a state may utilize more sophisticated tools such as air quality dispersion modeling to support their analysis. In the SIP submittal, Ecology used air quality dispersion modeling to assess the comprehensive impacts of growth through 2015 on ozone levels in the area. The results of this modeling demonstrate that the highest predicted design value (the 3-year average of the fourth highest daily maximum 8-hour average ozone value) for the Central Puget Sound area in 2015 would be 0.068 ppm, which is below both the 1997 and the 2008 ozone NAAQS, and would therefore be in compliance with both ozone NAAQS.

Based on the estimated emissions of VOCs and NOXsubmitted with this maintenance plan, the EPA concludes that this maintenance plan would not cause an increase of direct emissions or precursor emissions that would interfere with the maintenance of any criteria pollutant NAAQS in the Central Puget Sound area. Therefore, the EPA concludes that the maintenance demonstration submitted by the State meets the requirement of a section 110(a)(1) ozone maintenance plan.

3. Ambient Air Quality Monitoring

With regard to the ambient air monitoring component of the maintenance plan, Ecology commits to continue operating the current Puget Sound ozone monitoring network in accordance with all of the applicable requirements of 40 CFR part 58 throughout the maintenance period to verify maintenance of the 8-hour ozone standard. Ecology will also submit quality-assured ozone data to the EPA's Air Quality System within 90 days of the end of each quarter. The State of Washington's ambient air monitoring network meets all applicable EPA air monitoring regulations, and was most recently approved by the EPA on March 10, 2014. The EPA therefore finds that the State's ambient air monitoring network satisfies the requirements of CAA section 110(a).

4. Contingency Plan

Section 110(a)(1) of the CAA requires the State to develop a contingency plan that will ensure that any violation of a NAAQS is promptly corrected. The purpose of the contingency plan is to provide a range of response actions that may be selected for implementation in the event of any violation of the 8-hour ozone NAAQS.

There are two regulations adopted by the Puget Sound Clean Air Agency, the local air agency with jurisdiction in the Central Puget Sound area, on December 19, 2002, that are identified as contingency measures in this maintenance plan. These regulations were included as contingency measures in the ozone second 10-year maintenance plan for the Central Puget Sound area that was approved by the EPA on August 5, 2004 (69 FR 47364 and 69 FR 47365). These contingency measures are: (1) Regulation I, Section 8.06, Outdoor Burning Ozone Contingency Measure, and (2) Regulation II, Section 2.10, Gasoline Station Ozone Contingency Measure. Both the outdoor burning and the gasoline station contingency regulations would be triggered by a written finding from the EPA of a quality-assured violation of the ozone NAAQS and a determination that future violations can reasonably be addressed through implementing these regulations. TheEPA finds that these contingency measures satisfy the requirements of CAA section 110(a).

5. Verification of Continued Attainment

Since 1991, there have been no violations of either the 1997 or 2008 8-hour ozone standards at any ozone monitoring site in the Central Puget Sound ozone area. Ecology will continue to monitor ambient air quality ozone levels in the Central Puget Sound area and verify attainment of the ozone NAAQS as described in the maintenance plan. The State commits to preparing summer day emission inventories for the interim years of 2008, 2011 and 2014, and will compare these emission inventory results with the modeling emission inventories to ensure continued compliance with the 8-hour ozone NAAQS. The EPA finds that these methods to verify continued attainment of the ozone NAAQS satisfy the requirements of CAA section 110(a).

The EPA finds that the maintenance plan for the Central Puget Sound ozone area adequately addresses all five components outlined in the EPA's guidance of May 20, 2005, for developing maintenance plans under 110(a)(1) of the CAA.

III. Final Action

The EPA is approving a maintenance plan to maintain the 8-hour ozone NAAQS in the Central Puget Sound ozone area that was submitted by the State of Washington as a revision to its SIP on January 10, 2008. The maintenance plan for this area meets all CAA 110(a)(1) requirements and demonstrates that the Central Puget Sound ozone area will remain in attainment with the 1997 and 2008 ozone NAAQS through 2015. This decision was reached after offering consultation to the Tulalip Tribes, the Puyallup Tribe of Indians, the Muckleshoot Indian Tribe, the Stillaguamish Tribe, and the Nisqually Indian Tribe. The EPA did not receive any requests for consultation from these tribes.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA ; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not impose substantial direct costs on tribal governments or preempt tribal law. The SIP is not approved to apply in Indian country located in the State, except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area and the EPA is therefore approving this SIP on such lands. Consistent with EPA policy, the EPA provided a consultation opportunity to the Tulalip Tribes, the Puyallup Tribe of Indians, the Muckleshoot Indian Tribe, the Stillaguamish Tribe, and the Nisqually Indian Tribe in letters dated December 24, 2013. The EPA did not receive a request for consultation from these tribes.

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 1, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today'sFederal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (SeeCAA section 307(b)(2).).

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS1. The authority citation for part 52 continues to read as follows:Authority:

42 U.S.C. 7401,et seq.

Subpart WW—Washington2. Section 52.2470 is amended in table 2 of paragraph (e) by adding an entry “8-Hour Ozone 110(a)(1) Maintenance Plan” at the end of the section with the heading “Attainment and Maintenance Planning—Ozone.” to read as follows:§ 52.2470Identification of plan.

(e) * * *

Table 2—Attainment, Maintenance, and Other PlansName of SIP provisionApplicable geographic or

The Environmental Protection Agency (EPA) published a direct final rule that appeared in theFederal Registeron March 14, 2014. The document approved revisions to the California State Implementation Plan (SIP) concerning emissions inventories for the 2006 24-hour fine particle National Ambient Air Quality Standard (NAAQS) for the San Francisco Bay Area and Chico PM2.5nonattainment areas. We are approving these emissions inventories under the Clean Air Act (CAA or the Act). An error in the amendatory instruction is identified and corrected in this action.

DATES:

This rule is effective on May 13, 2014 without further notice.

ADDRESSES:

Docket:Generally, documents in the docket for this action are available electronically atwww.regulations.govand in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901. While all documents in the docket are listed atwww.regulations.gov,some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in theFOR FURTHER INFORMATION CONTACTsection.

FOR FURTHER INFORMATION CONTACT:

Lisa Tharp, EPA Region IX, (415) 947-4142,tharp.lisa@epa.gov.

SUPPLEMENTARY INFORMATION:

EPA published a direct final rule on March 14, 2014 (79 FR 14404) approving revisions to the California State Implementation Plan (SIP) concerning emissions inventories. In that approval EPA erroneously added the incorrect paragraph numbers to § 52.220, paragraph (c). Therefore the amendatory instruction is being corrected to reflect the corrected section paragraph numbering.

Correction

In the direct final rule published in theFederal Registeron March 14, 2014 (79 FR 14404), the following corrections are made:

The Environmental Protection Agency (EPA) is making a determination of attainment regarding the Pittsburgh-Beaver Valley, Pennsylvania fine particulate matter (PM2.5) nonattainment area (hereafter referred to as “the Pittsburgh Area” or “the Area”). EPAhas determined that the Pittsburgh Area has attained the 2006 24-hour PM2.5National Ambient Air Quality Standard (NAAQS), based upon quality-assured and certified ambient air monitoring data for 2010-2012. Preliminary data for 2013 show that the area continues to attain the standard. This determination of attainment suspends the requirements for the Pittsburgh Area to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures, and other planning State Implementation Plan (SIP) revisions related to the attainment of the standard for so long as the Area continues to attain the 2006 24-hour PM2.5NAAQS. This action does not constitute a redesignation to attainment under section 107(d)(3) of the Clean Air Act (CAA). The designation status of the Pittsburgh Area will remain nonattainment for the 2006 24-hour PM2.5NAAQS until such time as EPA determines that the Pittsburgh Area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan. EPA is also approving the 2011 motor vehicle emission budgets (MVEBs) used for transportation conformity purposes for the Pittsburgh Area. This action is being taken under the CAA.

DATES:

This final rule is effective on May 2, 2014.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2012-0753. All documents in the docket are listed in thewww.regulations.govWeb site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically throughwww.regulations.govor in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT:

Gregory Becoat, (215) 814-2036, or by email atbecoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On November 13, 2009, EPA published designations for the 2006 24-hour PM2.5NAAQS (74 FR 58688), which included the Pittsburgh Area as a nonattainment area. Designations became effective on December 14, 2009. The Pittsburgh Area consists of Beaver, Butler, and Westmoreland Counties, and portions of Allegheny (not including the townships which are part of the Liberty-Clairton nonattainment area), Armstrong, Green, and Lawrence Counties. This final determination of attainment only addresses the 2006 24-hour PM2.5NAAQS for the Pittsburgh Area.

On August 14, 2013 (78 FR 49403), EPA published a notice of proposed rulemaking (NPR) seeking comment on EPA's proposed determination that the Pittsburgh Area has attained the 2006 24-hour PM2.5NAAQS, based on the quality-controlled, quality-assured, and certified data from 2010-2012, and EPA's proposed approval of the 2011 MVEBs for transportation conformity purposes for the Pittsburgh Area. In response to the NPR, EPA received two comments, one dated September 10, 2013 from Mr. Harold Peterson and the other dated September 13, 2013 from Mr. Joseph Minott representing the Clean Air Council. A summary of the comments and EPA's response is provided in Section III (Summary of Public Comment and EPA Response) of this final rulemaking action.1

1Because the attainment date has not passed, this action is limited to a clean data determination and is not a determination of attainment pursuant to section 179(c)(1) of the CAA.

II. Summary of Rulemaking Actions

EPA is making a final determination that the Pittsburgh Area has attained the 2006 24-hour PM2.5NAAQS. This “clean data” determination is based upon quality assured and certified ambient air monitoring data that show the area has monitored attainment of the 2006 24-hour PM2.5NAAQS for the 2010-2012 monitoring period. Quality-assured data for 2013 indicates that the Area continues to attain the 2006 24-hour PM2.5NAAQS. Table 1 is a summary of publicly available information, which is available athttp://www.epa.gov/airdata/.

As a result of this determination, the requirement for the Pittsburgh Area to submit an attainment demonstration and associated RACM, RFP, contingency measures, and other planning SIP revisions related to the attainment of the 2006 24-hour PM2.5NAAQS shall be suspended for so long as the Area continues to attain the 2006 24-hour PM2.5NAAQS.2This determination of attainment does not constitute a redesignation of the Pittsburgh Area toattainment for the 2006 24-hour PM2.5NAAQS under CAA section 107(d)(3). This rulemaking action does not involve approving a maintenance plan for the Pittsburgh Area, nor determines that the Pittsburgh Area has met all the requirements for redesignation under the CAA, including that the attainment be due to permanent and enforceable measures. Therefore, the designation status of the Pittsburgh Area will remain nonattainment for the 2006 24-hour PM2.5NAAQS until such time as EPA takes final rulemaking action to determine that the Pittsburgh Area meets the CAA requirements for redesignation to attainment.

2Even though the requirements are suspended, EPA is not precluded from acting upon these elements at any time if submitted to EPA for review and approval.

EPA is also approving the 2011 MVEBs for transportation conformity purposes for the Pittsburgh Area. The rationale for EPA's proposed action is explained in the NPR and will not be restated here. Relevant support documents for this action are available online atwww.regulations.gov,Docket number EPA-R03-OAR-2012-0753.

III. Summary of Public Comment and EPA Response

Comment:The commenter endorsed EPA's proposed approval and stated that the determination to attainment is appropriate. The commenter stated that although the monitoring sites do not demonstrate a decrease in PM2.5levels, all monitoring sites have achieved the appropriate attainment levels for the 2006 PM2.5NAAQS. Further, the commenter supported approval of the MVEBs. The commenter references a monitoring study that he undertook which found that on-road mobile sources were the greatest contributor to nitrogen oxides (NOX). The commenter believes that the NOXMVEBs are appropriate and “should not result in PM2.5nonattainment.”

Response:EPA agrees with the commenter's conclusion that the determination of attainment is appropriate based upon quality-assured and certified ambient air monitoring data for 2010-2012, and subsequent data that shows the Area continues to attain the standard. Moreover, EPA agrees that the established MVEBs will not cause or contribute to violations of any NAAQS or delay timely attainment of any NAAQS.

Comment:By letter dated September 13, 2013, Mr Joseph Minott, on behalf of the Clean Air Council (the Council), submitted comments which focused upon EPA's use of the “maximum quarterly substitution test” for certain incomplete sampling periods at several monitors. The Council commented that EPA's guidelines allow for maximum quarter substitutions as long as emissions and meteorology of the quarter(s) in question are typical. The Council requested that EPA explain in more detail how the substituted quarters were found to have typical, comparable, and/or consistent meteorology. In making this request, the Council expressed concern that EPA's guidelines had not laid out criteria or set of conditions that must be met in order for substituted samples to be considered as having occurred during comparable meteorology/emissions periods. Further, the Council voiced a concern about how this method could be applied to ensure consistent results.

Response:As explained in the NPR, for EPA to determine that the Pittsburgh Area has attained the 2006 24-hour PM2.5NAAQS, the 24-hour design value of the Pittsburgh Area must be less than the standard, 35 μg/m3. EPA has promulgated regulations which set forth the procedures for determining when the 24-hour PM2.5NAAQS has been met.See40 CFR 50, appendix N (appendix N). The 24-hour design value determined for an area is the highest three-year average of the annual 98th percentile measured at all the monitors. Only valid and complete air quality data can be used for comparison to the 2006 24-hour PM2.5NAAQS. As provided in 40 CFR 50, appendix N, section 4.2 (appendix N, section 4.2), a year meets data completeness requirements when at least 75 percent of the scheduled sampling days for each quarter have valid data. As explained in the NPR, several monitors in the Pittsburgh Area did not meet the completeness requirement during one or more quarters in 2010-2012. EPA addressed such missing data by applying the maximum quarterly substitution test which is described in the NPR. The NPR's discussion of the use of the maximum quarterly substitution test refers to EPA's April 1999 guidance document “Guideline on Data Handling Conventions for the PM NAAQS” (1999 p.m. NAAQS Data Handling Guidelines). The Council in its comment seeks additional information relating to EPA's application of these guidelines in the context of reviewing the monitoring data for the Pittsburgh Area.

EPA's reference in the NPR to the PM NAAQS Data Handling Guidelines in the NPR was outdated, since the guidance has been superseded by a regulatory provision in 40 CFR 50 appendix N. On January 15, 2013, appendix N was revised to add two additional tests which assess data completeness issues for PM2.5NAAQS, including a revised version of the maximum quarterly substitution test described in the NPR.SeeNational Ambient Air Quality Standards for Particulate Matter, 78 FR 3086, 3228-3232 and 3277-3281 (January 15, 2013). Thus, rather than referencing the 1999 p.m. NAAQS Data Handling Guidelines, the NPR should have referred to appendix N, section 4.2. As explained in the January 15, 2013 final rule: “With regard to assessments of data completeness, the EPA proposal included two additional data substitution tests . . . into appendix N for validating annual and 24-hour PM2.5design values otherwise deemed incomplete . . . The EPA proposed to add these tests in order to codify existing practices currently included in guidance documents (U.S. EPA, 1999) and implemented as EPA standard operating procedures, and further to make the data handling procedures for PM2.5more consistent with the procedures used for other NAAQS.”See id.at 3230. Therefore, the guidance document cited in the NPR has been superseded by the revision and codification of such guidelines in appendix N.

As revised, appendix N, section 4.2 provides that: “where the explicit 75 percent quarterly data capture requirement is not met, the 24-hour PM2.5NAAQS shall still be considered valid if it passes the maximum quarterly value data substitution test (maximum quarterly substitution test).”SeeAppendix N, section 4.2(b). The maximum quarterly substitution test is defined at appendix N, section 4.2(c)(i) and the procedures for applying this test are set forth there as well: “Identify for each deficient quarter (i.e., those with less than 75 percent but at least 50 percent data capture) the highest reported daily PM2.5value for that quarter, excluding state-flagged data affected by exceptional events which have been approved for exclusion by the Regional Administrator, looking across those three quarters of all three years under consideration.” In reviewing the monitoring data for the Pittsburgh Area in preparation of the NPR, EPA applied and followed the procedures set forth in appendix N, section 4.2. In the NPR, EPA erroneously referenced the PM NAAQS Data Handling Guidelines, rather than appendix N, section 4.2. Although the 1999 guidelines included procedures for comparing meteorology or emissions of the quarters in question, the regulatory successor to the guidelines, codified in appendix N, do not require EPA to determine whether the meteorology or emissions of the quarters in question are comparable.

Notwithstanding the fact that the current regulations no longer require theanalysis requested by the Council, because EPA's proposal erroneously referred to the guidelines, EPA is providing herein a detailed discussion of the comparison of the meteorology for the one of the monitors at issue (the North Park monitor) as would have been appropriate prior to January 2013, when the referenced guidelines were relevant and applicable. EPA is also providing a summary of the meteorological data comparison for the remaining monitors.

As discussed in the NPR, the following four monitors in the Pittsburgh Area did not meet the completeness requirement for one or more quarters during 2010-2012 monitoring period and EPA addressed the missing data from these monitors by applying the maximum quarter substitution test: (1) North Park monitor; (2) Harrison monitor; (3) North Braddock monitor; and, (4) Charleroi monitor. For each quarter where there was missing data at each of these four monitors, EPA determined the highest reported daily PM2.5value for that quarter across the three years under consideration (2010-2012) and substituted that value for the missing data for such quarter. For example, the North Park monitor, in Allegheny County, Pennsylvania had missing data for the first quarters of 2010, 2011, and 2012. EPA determined that, during the first quarter of these years, the maximum quarterly 24-hour monitoring concentration of 26.5 μg/m3occurred on March 9, 2010. Using this value (26.5 μg/m3) as a substitute value, EPA recalculated the design value for the first quarters of 2010, 2011, and 2012 at this monitor to determine if, using the substituted data, the re-calculated design value would be below the PM2.5NAAQS. In accordance with appendix N, section 4.2, this process was repeated for each monitor for each quarter where there was missing data.

In response to the Council's request for additional meteorological comparative data, for the North Park monitor meteorological similarity analysis, meteorological data from the Pittsburgh International Airport was reviewed to determine meteorological similarity between the first quarter of 2010 (i.e. the substitute quarter) and the first quarters of 2011 and 2012 during which there was missing monitoring data at the North Park monitor. Quarterly averages and standard deviations of meteorological variables, such as average temperature, average precipitation, and average maximum and minimum temperature, were calculated from meteorological data downloaded from the Pennsylvania State Climatologist Web site.3Meteorological variables included daily averaged temperatures, wind speeds and humidity levels, daily maximum and minimum temperatures, and monthly precipitation. First quarter meteorological variables for 2010, 2011, and 2012 were similar as all of the variables fell within a common standard deviation. This observation indicates that no large differences in meteorology occurred at the North Park monitor between the dates of missing data in the first quarters of 2011 and 2012 and the first quarter of 2010, the quarter during which the highest reported daily PM2.5value for such quarters was recorded across the first quarter of the three years under consideration (2010-2012). Because there were also data deficiencies during the second quarter of this time period at the North Park monitor, an identical meteorological similarity analysis was done for the North Park monitor for the second quarter of 2010 through 2012. The results of the meteorological similarity analysis for the 2010-12 second quarters were similar to the results for the first quarter results and indicated that there were no large meteorological differences at the North Park monitor, during the time period subject to analysis.

With the exception of the Charleroi monitor, for each quarter during which there was missing data at each of the remaining monitors, EPA conducted similar analyses of meteorological data. The meteorological similarity analysis for the Harrison and North Braddock monitors used meteorological data from the Allegheny County Airport,4which is the closest National Weather Service station to the monitors. The Harrison monitor used substituted PM2.5concentrations for missing data in the second quarters of 2010, 2011, and 2012. The North Braddock monitor used substituted PM2.5concentrations for missing data in the second and fourth quarters of 2010, 2011, and 2012. After reviewing the meteorological data for the Harrison and North Braddock monitors, EPA determined that the data was similar. In the case of the Charleroi monitor, the highest reported daily PM2.5value (the substitute data value) occurred during the same time frame (same quarter and year) as the data deficiencies. Since, the date where there was missing data and the date on which the substitute value was recorded fell during the same quarter of the same year, a meteorological similarity analysis would not have been required under the 1999 guidelines, even if they were applicable.

4http://climate.psu.edu/data/ida/index.php?t=3&x=faa_daily&id=KAGC.

In response to the Council's comment, EPA reviewed the relevant meteorology data for the Pittsburgh Area as referenced in the guidelines which were erroneously referenced in the NPR and which have been superseded by revised appendix N. With respect to the applicable regulatory requirements, EPA's data analysis, including the application of the maximum quarterly substitution test, to determine whether the monitoring data demonstrates that the Pittsburgh Area attained the 2006 PM2.5NAAQS during 2010 through 2012, was completed in accordance with the applicable regulatory requirements set forth at 40 CFR 50, appendix N. Although the 1999 guidelines no longer apply to the maximum quarterly substitution test that EPA used here, because the revised regulatory provision of appendix N superseded such guidelines, EPA's analysis, as set forth here in response to the commenter's request, satisfies the provisions of both the prior guidelines and the currently applicable regulation in revised appendix N. Therefore, EPA's conclusion, that the maximum quarterly substitution test used for the data analysis is valid, is fully supported by both the prior and current provisions that apply. EPA's analysis of the meteorological comparison and other elements no longer required under the current regulation, is set forth solely to address the concerns raised by the commenter.

IV. Final Action

EPA is making a determination that the Pittsburgh Area is attaining the 2006 24-hour PM2.5NAAQS, based on quality-assured and certified ambient air monitoring data for the 2010-2012 monitoring period. Quality-assured data for 2013 summarized in Table 1 show that the Area continues to attain the standard. This final determination suspends the requirements for the Pittsburgh Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and other planning SIP revisions related to the attainment of the standard, for so long as the Area continues to attain the 2006 24-hour PM2.5NAAQS. This determination does not constitute a redesignation of the Pittsburgh Area to attainment. The Pittsburgh Area will remain designated nonattainment for the 2006 24-hour PM2.5NAAQS until such time as EPA determines that the Pittsburgh Area meets the CAA requirements for redesignation to attainment, including an approvedmaintenance plan. EPA is also approving the MVEBs for the 2006 24-hour PM2.5NAAQS. The new MVEBs must be used for future transportation conformity determinations. The 2011 MVEBs will be effective on the date of publication of this final rulemaking action in theFederal Register.

V. Statutory and Executive Order ReviewsA. General Requirements

This action, which makes a determination of attainment based on air quality, will result in the suspension of certain Federal requirements and/or will not impose any additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rulemaking action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the determination is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 1, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, approving the determination of attainment of the Pittsburgh Area with respect to the 2006 24-hour PM2.5NAAQS and the MVEBs, may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).).

(j) Determination of Clean Data.EPA has determined, as of May 2, 2014, that based on 2010-2012 ambient air quality data, the Pittsburgh-Beaver Valley, Pennsylvania fine particulate matter (PM2.5) nonattainment area has attained the 2006 24-hour PM2.5national ambient air quality standards (NAAQS) and approves the motor vehicle emission budgets used for transportation conformity purposes. This determination suspends the requirements for the Pittsburgh-Beaver Valley, Pennsylvania PM2.5nonattainment area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this area continues to meet the 2006 24-hour PM2.5NAAQS. If EPA determines, after notice-and-comment rulemaking, that this area no longer meets the 2006 24-hour PM2.5NAAQS, the corresponding determination of attainment for that area shall be withdrawn.

The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia through the Virginia Department of Environmental Quality (DEQ). Virginia's SIP revision addresses requirements of the Clean Air Act (CAA) and EPA's rules that require states to submit periodic reports describing progress towards reasonable progress goals (RPGs) established for regional haze and a determination of the adequacy of the state's existing implementation plan addressing regional haze (regional haze SIP). EPA is approving Virginia's SIP revision on the basis that it addresses the progress report and adequacy determination requirements for the first implementation period for regional haze.

DATES:

This final rule is effective on June 2, 2014.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2014-0006. All documents in the docket are listed in thewww.regulations.govWeb site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically throughwww.regulations.govor in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of Virginia's submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Irene Shandruk, (215) 814-2166, or by email atshandruk.irene@epa.gov.

SUPPLEMENTARY INFORMATION:I. Background

On February 25, 2014 (79 FR 10451), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of Virginia's progress report SIP, a report on progress made in the first implementation period towards RPGs for Class I areas in the Commonwealth and Class I areas outside the Commonwealth that are affected by emissions from Virginia's sources. This progress report SIP and accompanying cover letter also included a determination that Virginia's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018.

States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from within the state.See40 CFR 51.308(g). In addition, the provisions under 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of the adequacy of the state's existing regional haze SIP. The first progress report SIP is due five years after submittal of the initial regional haze SIP. On October 4, 2010, Virginia DEQ submitted the Commonwealth's first regional haze SIP in accordance with the requirements of 40 CFR 51.308.1The progress report SIP revision was submitted by Virginia on November 8, 2013 and EPA finds that it satisfies the requirements of 40 CFR 51.308(g) and 308(h).

1On June 13, 2012, EPA finalized a limited approval of Virginia's October 4, 2010 regional haze SIP to address the first implementation period for regional haze (77 FR 35287). In a separate action, published on June 7, 2012 (77 FR 33642), EPA finalized a limited disapproval of the Virginia regional haze SIP because of the Commonwealth's reliance on the Clean Air Interstate Rule (CAIR) to meet certain regional haze requirements, which EPA replaced in August 2011 with the Cross-State Air Pollution Rule (CSAPR) (76 FR 48208, August 8, 2011). In the aforementioned June 7, 2012 action, EPA finalized a Federal Implementation Plan (FIP) for Virginia to replace the Commonwealth's reliance on CAIR with reliance on CSAPR. Following these EPA actions, the DC Circuit issued a decision inEME Homer City Generation, L.P.v.EPA,696 F.3d 7 (D.C. Cir. 2012),cert. granted133 U.S. 2857 (2013) vacating CSAPR and keeping CAIR in place pending the promulgation of a valid replacement rule. EPA believes that theEME Homer Citydecision impacts the reasoning that formed the basis for EPA's limited disapproval of Virginia's regional haze SIP based on Virginia's reliance upon CAIR and expects to propose an appropriate action regarding the limited approval and limited disapproval of the regional haze SIP upon final resolution ofEME Homer City.

II. Summary of SIP Revision

On November 8, 2013, Virginia submitted a SIP revision to address progress made towards RPGs of Class I areas in the Commonwealth and Class I areas outside the Commonwealth that are affected by emissions from Virginia's sources. This progress report SIP also includes a determination of the adequacy of the Commonwealth's existing regional haze SIP.

Virginia has two Class I areas within its borders: James River Face Wilderness Area (James River) and Shenandoah National Park (Shenandoah). Virginia mentions in the progress report SIP that Virginia sources were also identified, through an area of influence modeling analysis based on back trajectories, as potentially impacting nine Class I areas in five neighboring states: Dolly Sods Wilderness Area in West Virginia; Great Smoky Mountains National Park and Joyce Kilmer—Slickrock Wilderness Area in North Carolina and Tennessee; Linville Gorge, Shining Rock and Swanquarter Wilderness Areas in North Carolina; Cohutta and Wolf Island Wilderness Areas in Georgia; and Cape Romaine Wilderness Area in South Carolina.

The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. EPA finds that Virginia's progress report SIP addressed each element under 40 CFR 51.308(g). The seven elements and EPA's conclusion are briefly summarized below; however, the detailed rationale for EPA's action is explained in the NPR and will not be restated here. No adverse public comments were received on the NPR.

The provisions in 40 CFR 51.308(g) require progress report SIPs to include a description of the status of measures in the approved regional haze SIP; a summary of emissions reductions achieved; an assessment of visibility conditions for each Class I area in the state; an analysis of changes in emissions from sources and activities within the state; an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; an assessment of the sufficiency of the approved regionalhaze SIP; and a review of the state's visibility monitoring strategy. As explained in detail in the NPR, EPA finds that Virginia's progress report SIP addressed each element and has therefore satisfied the requirements under 40 CFR 51.308(g).

In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. One possible action is submission of a negative declaration to EPA that no further substantive revision to the state's existing regional haze SIP is needed. In its progress report SIP, Virginia submitted a negative declaration that it had determined that the existing regional haze SIP requires no further substantive revision to achieve the RPGs for Class I areas affected by Virginia's sources. As explained in detail in the NPR, EPA concludes Virginia has adequately addressed 40 CFR 51.308(h) because the visibility data trends at the Class I areas impacted by the Commonwealth's sources and the emissions trends of the Commonwealth's largest emitters of visibility-impairing pollutants both indicate that the Commonwealth's RPGs for 2018 will be met or exceeded. Therefore, EPA concludes Virginia's progress report SIP meets the requirements of 40 CFR 52.308(h).

IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its PSD, NSR, or Title V program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

V. Statutory and Executive Order ReviewsA. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 1, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action to approve Virginia's regional haze five-year progress report SIP revision may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS1. The authority citation for part 52 continues to read as follows:Authority:

42 U.S.C. 7401et seq.

Subpart VV—Virginia2. In § 52.2420, the table in paragraph (e) is amended by adding an entry for Regional Haze Five-Year Progress Report at the end of the table to read as follows:§ 52.2420Identification of plan.

The Environmental Protection Agency (EPA) is approving State Implementation Plan (SIP) revisions submitted by the Governor of North Dakota on April 14, 2011. The revisions affect North Dakota's air pollution control rules regarding general provisions, ambient air quality standards (sulfur dioxide (SO2), nitrogen dioxide (NOX), and lead), and permitting. EPA acted separately on other provisions in the April 14, 2011 submittal related to North Dakota's regulation of greenhouse gases (GHGs) under its Prevention of Significant Deterioration (PSD) program. This action is being taken under section 110 of the Clean Air Act (the Act or CAA).

DATES:

This final rule is effective June 2, 2014.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2012-0761. All documents in the docket are listed in thehttp://www.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically throughhttp://www.regulations.govor in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in theFOR FURTHER INFORMATION CONTACTsection to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

(i) The words or initialsActorCAAmean or refer to the Federal Clean Air Act, unless the context indicates otherwise.

(ii) The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

(iii) The initialsGHGmean or refer to greenhouse gases.

(iv) The initialsNAAQSmean or refer to the National Ambient Air Quality Standards.

(v) The initialsNDACmean or refer to North Dakota Administrative Code.

(vi) The initialsNDDHmean or refer to the North Dakota Department of Health.

(vii) The initialsNESHAPmean or refer to National Emissions Standards for Hazardous Air Pollutants.

(viii) The initialsNOXmean or refer to nitrogen oxides.

(ix) The initialsNPRmean or refer to notice of proposed rulemaking.

(x) The initialsNSPSmean or refer to New Source Performance Standards.

(xi) The initialsNSRmean or refer to New Source Review.

(xii) The initialsPM2.5mean or refer to fine particulate matter.

(xiii) The initialsPSDmean or refer to Prevention of Significant Deterioration.

(xiv) The initialsSIPmean or refer to State Implementation Plan.

(xv) The initialsSO2mean or refer to sulfur dioxide.

(xvi) The wordsStateorNorth Dakotamean the State of North Dakota, unless the context indicates otherwise.

I. Background

On February 25, 2014 (79 FR 10448), EPA published a notice of proposed rulemaking (NPR) for the State of North Dakota. The NPR proposed approval of several revised Air Pollution Control Rules in the North Dakota SIP. The revisions to the State rules became effective on April 1, 2011. The formal SIP revision was submitted by the State of North Dakota on April 14, 2011. The SIP revision involves the following chapters of the North Dakota Administrative Code (NDAC): 33-15-01, “General Provisions,” 33-15-02, “Ambient Air Quality Standards,” and 33-15-14, “Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V permit to Operate.” We previously acted on the revisions to NDAC 33-15-15, “Prevention of Significant Deterioration of Air Quality” in the April 14, 2011 submittal regarding regulation of GHGs and fine particulate matter (PM2.5) under North Dakota's PSD program on October 23, 2012 (77 FR 64734). The revisions affect North Dakota's air pollution control rules regarding general provisions, ambient air quality standards (SO2, NOX, and lead), and permitting. More background for today's final rule and our rationale for approval are discussed in detail in our proposal (see 79 FR 10448, February 25, 2014). The comment period for the proposal was open for 30 days and ended on March 27, 2014. We received no comments. Accordingly, we are finalizing our actions as proposed.

II. Analysis of SIP Revisions

We are approving the April 14, 2011 submittal for numerous straightforward SIP revisions to NDAC Chapters 33-15-01, 33-15-02, and 33-15-14. Additional revisions to NDAC Chapter 33-15-14 for the State's minor source permitting program required more in-depth analysis regarding the State's revisions to sections 33-15-14-01 and 33-15-14-02. The revisions to Chapter 33-15-14 changed the permitting requirement for sources subject to a new source performance standard (NSPS) or national emission standard for hazardous air pollutant (NESHAP). Previously, the SIP-approved minor source permit rule required any source subject to an NSPS or NESHAP to obtain a permit from the State regardless of the quantity of source emissions. The North Dakota Department of Health (NDDH) has changed the rule so the permit requirement only applies to sources subject to a state-adopted NSPS or NESHAP. The State made this change to avoid the burden of permitting the numerous oil and gas facilities that became subject to the newly promulgated federal NSPS at 40 CFR part 60, subpart OOOO (Standards of Performance for Crude Oil and Natural Gas Production, Transmission and Distribution). The effect of these revisions is the State, by not adopting subpart OOOO into State law (and with no intention to adopt it in the future) will not have to permit the sources subject to subpart OOOO. Instead, the State will continue to rely on an existing exemption for oil and gas production operations at subsection 33-15-14-02.13.o and the State's oil and gas registration program at Chapter 33-15-20. The sources the State intends to continue to exclude from permitting include the multitude of small units, such as tanks, engines, and other oil and gas production related units that would have otherwise been subject to the State's minor New Source Review (NSR) permit program. State permitting requirements aside, national emissions standards in any NSPS or NESHAP including 40 CFR part 60, subpart OOOO still apply to the subject sources. The revisions related to NSPS and NESHAP permitting result in a relaxation of North Dakota's SIP since now a narrower subset of minor sources subject to NSPS and NESHAP requirements (only those sources subject to NSPS and NESHAP requirements that are adopted by the State) are subject to permitting. In the analysis in our proposal, EPA acknowledged that North Dakota approached this current SIP revision in a prospective manner, revising its rules prior to EPA issuing the subpart OOOO requirements. However, EPA continues to work actively with North Dakota to ensure the stringency of North Dakota's minor NSR permit program is maintained and meets all applicable requirements with respect to oil and gas operations in the State.

CAA section 110(l) requires a demonstration that a SIP revision does not interfere with any requirement concerning attainment and that a relaxation is sufficiently protective of air quality and other CAA requirements in order for EPA to approve the relaxation. EPA conducted such a demonstration for the permitting rule revision in the April 2011 submittal finding the revisions are not presently interfering with the State's SIP control strategy or causing national ambient air quality standards (NAAQS) violations in North Dakota. Our demonstration is included in the docket for this action.

III. Final Action

EPA is approving revisions to the North Dakota SIP that the Governor of North Dakota submitted with a letter dated April 14, 2011 and that were State-effective April 1, 2011. Specifically, EPA is approving North Dakota's revisions to the following portions of the North Dakota Administrative Code: Chapter 33-15-01, “General Provisions,” section 33-15-01-04.52, Chapter 33-15-02, “Ambient Air Quality Standards,” sections 33-15-02-04.1, 33-15-02-07.1, 33-15-02-07.2, 33-15-02-07.3, 33-15-02-07.4, and section 33-15-02, Tables 1 and 2. EPA is approving Chapter 33-15-14, “Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate,” sections 33-15-14-01.9, 33-15-14-01.10, 33-15-14-01.12, 33-15-14-01.15, 33-15-14-02.1, 33-15-14-02.13, 33-15-14-02.13.o, and 33-15-14-03.1c. EPA will continue discussions with the State to clarify and strengthen the State's current minor source permit program as it relates to oil and gas production facilities. Our proposed action provides a description of these revisions. See 79 FR 10448, February 25,2014. EPA acted previously on the revisions to Chapter 33-15-15, “Prevention of Significant Deterioration of Air Quality,” that were also included in the April 14, 2011 submittal. See 77 FR 64734, October 23, 2012.

IV. Statutory and Executive Orders Review

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 USC 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 1, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS1. The authority citation for part 52 continues to read as follows:Authority:

42 U.S.C. 7401et seq.

Subpart JJ—North Dakota2. Section 52.1820, the table in paragraph (c) is amended as follows:a. By revising the table entries for “33-15-01-04”, “33-15-02-04”, “33-15-02-07”, and “33-15-02, Table 1”;b. By removing the table entry for “33-15-02-07.3, 33-15-02-07.4, and 33-15-02, Table 2”;c. By adding the table entry for “33-15-02, Table 2” in numerical order;d. By revising the table entries for “33-15-14-01” and “33-15-14-02”;e. By adding the table entries for “33-15-14-02.1”, and “33-15-14-02.13 and Subsection o.” in numerical order; andf. By revising the table entries for “33-15-14-03” and “33-15-14-03.1.c”.

The revisions and additions read as follows:

§ 52.1820Identification of plan.

(c) * * *

State citationTitle/subjectState effective dateEPA approval date

and citation1

Explanations*******33-15-01-04Definitions4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]*******33-15-02-04Ambient air quality standards4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]33-15-02-07Concentrations of air contaminants in the ambient air restricted4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]33-15-02, Table 1Ambient Air Quality Standards4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]33-15-02, Table 2National Ambient Air Quality Standards4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]*******33-15-14-01Designated air contaminant sources4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]*******33-15-14-02Permit to construct4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]Excluding subsections 1, 12, 13, 3.c, 13.b.1, 5, 13.c, 13.i(5), 13.o, and 19 (one sentence) which were subsequently revised and approved. See below. See additional interpretive materials cited in 57 FR 28619, 6/26/92, regarding the State's commitment to meet the requirements of EPA's “Guideline on Air Quality Models (Revised).”33-15-14-02.1Permit to construct required4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]*******33-15-14-02.13 and Subsection oExemptions4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]*******33-15-14-03Minor source permit to operate4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]Excluding subsections 10, 1.c, 4, 5.a(1)(d), 11, and 16 (one sentence) which were subsequently revised and approved. See below. Also see 40 CFR 52.1834*******33-15-14-03.1.cPermit to operate required4/1/115/2/14, [InsertFederal Registerpage number where the document begins.]*******1In order to determine the EPA effective date for a specific provision listed in this table, consult theFederal Registernotice cited in this column for the particular provision.[FR Doc. 2014-09855 Filed 5-1-14; 8:45 am]BILLING CODE 6560-50-PENVIRONMENTAL PROTECTION AGENCY40 CFR Part 80[EPA-HQ-OAR-2012-0546; FRL-9910-18-OAR]RIN 2060-AS21Regulation of Fuels and Fuel Additives: 2013 Cellulosic Biofuel StandardAGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking direct final action to revise the 2013 cellulosic biofuel standard published on August 15, 2013. This action follows from EPA having granted two petitioners' requests for reconsideration of the 2013 cellulosic biofuel standard. EPA granted reconsideration because one of the two companies that EPA expected to produce cellulosic biofuel in 2013 announced soon after EPA signed its final rule that it intended to produce substantially lower volumes of cellulosic biofuel in 2013 than it had earlier reported to EPA. Since the cellulosic biofuel standard was based on EPA's projection of cellulosic biofuel production in 2013, EPA deemed this new information to be of central relevance to the rule, warranting reconsideration. On reconsideration, EPA is directed to base the standard on the lower of “projected” production of cellulosic fuel in 2013 or the cellulosic biofuel applicable volume set forth in the statute. Since data are available to show actual production volumes for 2013, EPA's “projection” and final rule are based on actual cellulosic biofuel production in 2013. This action only affects the 2013 cellulosic biofuel standard; all other RFS standards remain unchanged. EPA is finalizing a revised cellulosic biofuel standard of 0.0005% for 2013.

DATES:

This rule is effective on July 1, 2014 without further notice, unless EPA receives relevant adverse comment by June 2, 2014. If EPA receives relevant adverse comment, we will publish a timely withdrawal of this direct final rule in theFederal Registerinforming the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2012-00546, by one of the following methods:

•Hand Delivery:EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-HQ-OAR-2012-0546. EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughwww.regulations.govyour email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.For additional instructions on submitting comments, go to Section I.B of theSUPPLEMENTARY INFORMATIONsection of this document.

Docket:All documents in the docket are listed in thewww.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action. This action amends the 2013 cellulosic biofuel standard that was finalized in “Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards; Final Rule,” (August 15, 2013; 78 FR 49794). Finalizing this adjusted 2013 cellulosic biofuel standard expeditiously will reduce regulatory uncertainty and avoid unnecessary cost or burden for obligated parties. Until this adjusted cellulosic biofuel standard is finalized, obligated parties will have to comply with the current and significantly higher 2013 cellulosic biofuel standard. This would likely involve a substantial purchase of cellulosic waiver credits, which EPA would subsequently need to reimburse. This action follows from EPA having granted, on January 23, 2014, requests for reconsideration of the 2013 cellulosic biofuel standard submitted by the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers. In granting reconsideration, EPA determined that petitioners had met the statutory criteria of section 307(d)(7)(B) of the Clean Air Act, since petitioners had identifiednew information of central relevance that became available after the comment period closed but within the time period specified for parties to seek judicial review.

In the “Proposed Rules” section of today'sFederal Register, we are publishing a separate document that will serve as the proposed rule to revise the 2013 cellulosic standard if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see theADDRESSESsection of this document.

If EPA receives relevant adverse comment or a request for a public hearing, we will publish a timely withdrawal in theFederal Registerinforming the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

II. Does this action apply to me?

Entities potentially affected by this direct final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your activities would be regulated by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.

On October 10, 2013, and October 11, 2013, the U.S. Environmental Protection Agency (EPA) received petitions from the American Fuel & Petrochemical Manufacturers and the American Petroleum Institute requesting that EPA reconsider portions of the final rule entitledRegulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards1. Petitioners noted the substantial reduction (from 3-5 million gallons to 1-2 million gallons) in anticipated cellulosic biofuel production in 2013 that was announced shortly after EPA signed its final rule by one of two companies expected to produce cellulosic biofuel in 2013. After review, EPA determined that the petitions for reconsideration with regard to the 2013 cellulosic biofuel standard had demonstrated the statutory criteria specified in Section 307(d)(7)(B) of the Clean Air Act for the reconsideration. On January 23, 2014, the Administrator notified petitioners that their petitions, with regard to the 2013 cellulosic biofuel standard, had been granted and that EPA would initiate a notice and comment rulemaking to reconsider the standard.2

178 FR 49794 (August 15, 2013).

2EPA has not yet taken action on aspects of these petitions that relate to matters other than the 2013 cellulosic biofuel standard.

In this rulemaking, EPA is revising the 2013 cellulosic biofuel standard. In reconsidering the earlier cellulosic standard, EPA is directed to base the standard on the lower of the “projected” production volume of cellulosic fuel in 2013 or the cellulosic biofuel volume target set forth in the statute. At this time, since data are available to show actual production volumes of cellulosic for 2013, our “projection” is based on actual cellulosic production in 2013. Specifically, we are calculating the volume of cellulosic biofuel to be used in 2013 by reference to the actual number of cellulosic biofuel renewable identification numbers (RINs) generated and reported through the EPA Monitored Transaction System (EMTS) in 2013.

In 2013 a total of 818,517 cellulosic biofuel RINs were generated.3Of this total, 8,332 RINs were invalidly generated and were retired.4This leaves a total of 810,185 cellulosic biofuel RINs that are available for use by obligated parties. EPA believes that the EMTS data best represent the number of cellulosic RINs actually produced in 2013 and are therefore an appropriate volume on which to base the required volume of cellulosic biofuel for 2013.

The percentage standard for cellulosic biofuel for 2013 is shown below in Table I-1. The specific formula we used in calculating the cellulosic renewable fuel percentage standard is contained in the regulations at 40 CFR 80.1405 and described in Section V of this preamble. The percentage standard for cellulosic biofuel represents the ratio of the renewable fuel volume we have determined should be required for 2013 to the non-renewable gasoline and diesel volume used in 2013, with appropriate corrections. Detailed calculations can be found in Section IV, including a description of the 2013 gasoline and diesel volumes used.

Table I-1—Percentage Standards for 2013Cellulosic biofuel0.0005%

Since EPA's revised cellulosic biofuel standard for 2013 is lower than the pre-existing standard, it is possible that some obligated parties may have purchased more cellulosic waiver credits than will ultimately be needed for 2013 compliance. EPA will issue a refund for all such excess cellulosic waiver credits.

II. Assessment of the Petitions for Reconsideration of the Cellulosic Biofuel Standard

On August 6, 2013, EPA finalized the annual standard for cellulosic biofuel as required under the Clean Air Act Section 211(o).5EPA set the 2013 cellulosic biofuel percentage standard using the volume of cellulosic biofuel (6 million ethanol-equivalent gallons) that EPA expected to be produced and used in the United States in 2013. This projection was based on expected production from two companies: INEOS Bio (0-1 million actual gallons, 0-1 million ethanol-equivalent gallons) and KiOR (3-4 million actual gallons, 5-6 million ethanol-equivalent gallons. KiOR's facility is located in Columbus, Mississippi, while INEOS Bio's facility is located in Vero Beach, Florida.

578 FR 49794, August 15, 2013.

EPA subsequently received petitions from the American Fuel & Petrochemical Manufacturers and American Petroleum Institute, dated October 10 and October 11, 2013, respectively, requesting that EPA reconsider the 2013 cellulosic biofuel standard and other parts of the rule entitledRegulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards.

Both the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers in their petitions for reconsideration cited a conference call held by KiOR on August 8, 2013, two days after EPA finalized the 2013 rule, as providing new information that required EPA to reconsider its 2013 cellulosic biofuel standard. In this conference call, KiOR issued updated guidance on their expected volume of cellulosic biofuel production in 2013 and KiOR lowered its projection to 1-2 million actual gallons in 2013. This represented a significant reduction from KiOR's previous projection of 3-5 million actual gallons in a May 9, 2013, conference call. This updated KiOR guidance was also lower than EPA's projected cellulosic biofuel production from KiOR's facility of 3-4 million actual gallons, which had been based in part on information from the earlier May 9, 2013, conference call. KiOR's announcement on August 8, 2013, therefore clearly represents new information that was not available during the comment period, and which became available after the comment period had closed but within the period for parties to seek judicial review.

EPA next considered whether the objection was of central relevance to the outcome of the rule. EPA interprets the phrase “of central relevance to the outcome of the rule” to mean that the objection provides substantial support for the argument that the regulation should be revised. Because we projected that only two firms would contribute to the cellulosic biofuel volume in 2013, and because KiOR's anticipated production reflected more than 80% of our volume projection, KiOR's reduced production estimate for 2013 from 3-5 million actual gallons of cellulosic biofuel to 1-2 million actual gallons of cellulosic biofuel, announced in their public conference call on August 8, 2013, strongly indicated that the production of cellulosic biofuel in 2013 was likely to be significantly lower than EPA's projection.

Even if both companies produced cellulosic biofuel at the high end of their projected production ranges after the KiOR revision (1 million ethanol-equivalent gallons for INEOS Bio, 3 million ethanol-equivalent gallons for KiOR) the total availability of cellulosic biofuel RINs generated in 2013 would still be 33% lower than the EPA projection in the final rule. Had the updated production estimate from KiOR's conference call on August 8, 2013, been available to EPA at the time the 2013 cellulosic biofuel standard was finalized, it is highly probable that it would have impacted the outcome of that standard. On these grounds, EPA determined that KiOR's updated production estimate is of central relevance to the 2013 cellulosic biofuel standard, as it provides substantial support for the argument that the regulation should be revised.

Although not relevant to EPA's action on the 2013 cellulosic standard, it should be noted that EPA does not anticipate that future modifications to company cellulosic biofuel production estimates that are received after the close of the comment period but within the period for parties to seek judicial review, will necessarily be grounds for the reconsideration of the cellulosic biofuel standard in future years. Here, reconsideration was granted due to the substantially reduced production estimates (from 3-5 million gallons to 1-2 million gallons) by one of only two companies expected to produce cellulosic biofuel in 2013. Any similar situation will be evaluated on a case-by-case basis. As the number of facilities from which cellulosic biofuel production increases, and as the potential production volume from each facility increases, it becomes increasingly less likely that changes in the production estimate from any single company will be of central relevance to the overall cellulosic biofuel standard. The greater the number of companies expected to produce cellulosic biofuel, the more likely it is that a reduction in the expected volume from any single company would either be insignificant in the context of the total standard, or can be made up with higher production volumes from another, or more likely several other companies.

Our decision to grant reconsideration of the 2013 cellulosic biofuel standard has no impact on other 2013 RFS standards.

III. Cellulosic Biofuel Volume for 2013

EPA is directed by Section 211(o)(7)(D)(i) of the Clean Air Act to base the 2013 cellulosic biofuel standard on the lower of the “projected” production volume of cellulosic fuel in 2013 or the 1.0 billion gallon 2013 cellulosic biofuel “applicable volume” set forth in Section 211(o)(2)(B)(III) of the statute. In projecting biofuel production for a given year, EPA must consider an estimate provided by the Energy Information Administration (EIA), and may also consider additional available and relevant information.APIv.EPA,706 F.3d 474 (D.C. Cir. 2013) Since EPA is now tasked with making a “projection” after the year has ended, we believe the most appropriate information and data in this instance isthe actual cellulosic biofuel production (in ethanol-equivalent gallons6) in 2013.

6More than one RIN is generated for each physical gallon of renewable fuel that has a higher energy content than ethanol. For example, 1.7 RINs are generated for one physical gallon of cellulosic diesel fuel. Ethanol-equivalent gallons are used to project cellulosic biofuel production when setting the cellulosic biofuel standard, and RINs, generated on an ethanol-equivalent basis, are used to comply with the standard.

EPA tracks and publically reports the number of RINs generated in the RFS program through the EPA Moderated Transaction System (EMTS).7There are two types of RINs that may be used to satisfy a company's cellulosic biofuel RVO: Cellulosic biofuel RINs (D3) and cellulosic diesel RINs (D7). The total number of 2013 RINs available to satisfy the cellulosic biofuel RVO can be calculated by adding the number of D3 and D7 RINs generated in 2013 and subtracting the number of RINs generated in error.8Using this method, the total number of valid RINs generated and which can be used towards the cellulosic biofuel obligation in 2013 is 810,185. This calculation for cellulosic biofuel RINs is shown in Figure III-1 below.

The renewable fuel standards are expressed as volume percentages and are used by each refiner or importer to determine their Renewable Volume Obligation (RVO).Each standard applies to the sum of all gasoline and diesel produced or imported by an obligated party. The applicable percentage standard is set so that if every obligated party meets the percentages, then the amount of cellulosic biofuel used will meet the volumes required on a nationwide basis. As discussed in Section III, the required volume of cellulosic biofuel for 2013 is 810,185 ethanol-equivalent gallons.

9RIN numbers are from the EMTS (last accessed March 19, 2014).

Table IV.A-1—Volume for Use in Setting the Applicable Percentage Standards for 2013aCellulosic biofuel810,185aDue to the manner in which the percentage standards are calculated, the volume is given in terms of ethanol-equivalent gallons

The formulas used in deriving the annual standards are typically based in part on estimates of the volumes of gasoline and diesel fuel, for both highway and nonroad uses, that are projected to be used in the year in which the standard will apply. However, as discussed below, for this rule we will use the most recent EIA estimate, published in March 2014. Producers of other transportation fuels, such as natural gas, propane, and electricity from fossil fuels, are not subject to the standards, and volumes of such fuels are not used in calculating the annual standards. Since the standards apply to producers and importers of gasoline and diesel, these are the transportation fuels used to set the standards, and then again to determine the annual volume obligations of an individual gasoline or diesel producer or importer.

B. Calculation of the Cellulosic Biofuel Standard1. How is the standard calculated?

The following formula is used to calculate the four percentage standards applicable to producers and importers of gasoline and diesel (see § 80.1405):

ER02MY14.073WhereStdCB,i= The cellulosic biofuel standard for year i, in percent.RFVCB,i= Annual volume of cellulosic biofuel required by section 211(o) of the Clean Air Act for year i, in gallons.Gi= Amount of gasoline projected to be used in the 48 contiguous states and Hawaii, in year i, in gallons.Di= Amount of diesel projected to be used in the 48 contiguous states and Hawaii, in year i, in gallons. This value excludes diesel used in ocean-going vessels.RGi= Amount of renewable fuel blended into gasoline that is projected to be consumed in the 48 contiguous states and Hawaii, in year i, in gallons.RDi= Amount of renewable fuel blended into diesel that is projected to be consumed in the 48 contiguous states and Hawaii, in year i, in gallons.GSi= Amount of gasoline projected to be used in Alaska or a U.S. territory in year i if the state or territory opts-in, in gallons.RGSi= Amount of renewable fuel blended into gasoline that is projected to be consumed in Alaska or a U.S. territory in year i if the state or territory opts-in, in gallons.DSi= Amount of diesel projected to be used in Alaska or a U.S. territory in year i if the state or territory opts-in, in gallons.RDSi= Amount of renewable fuel blended into diesel that is projected to be consumed in Alaska or a U.S. territory in year i if the state or territory opts-in, in gallons.GEi= Amount of gasoline projected to be produced by exempt small refineries and small refiners in year i, in gallons, in any year they are exempt per §§ 80.1441 and 80.1442, respectively. For 2013, this value is 0.12 billion gallons. See further discussion in Section IV.B.2 below.DEi= Amount of diesel projected to be produced by exempt small refineries and small refiners in year i, in gallons, in any year they are exempt per §§ 80.1441 and 80.1442, respectively. For 2013, this value is 0.14 billion gallons. See further discussion in Section IV.B.2 below.

The statute requires that EIA provide EPA in October of each year an estimate of the projected gasoline and diesel consumption in the forthcoming calendar year (as well as additional information on projected cellulosic biofuel and biomass diesel consumption), and EPA is to “determine” the annual percentage standards “based on” the information provided by EIA. This structure envisions standards enacted prior to the compliance year. The United States Court of Appeals for the District of Columbia Circuit recently interpreted this provision in the context of a challenge to the 2012 cellulosic biofuel standard.APIv.EPA,706 F.3d 474 (D.C. Cir. 2013). The Court held that the Act “[p]lainly . . . [does not] contemplateslavish adherence by EPA to the EIA estimate”; had Congress so intended, “it could have skipped the EPA `determination' altogether.” Id. Instead, “EPA [i]s entitled . . . to read the phrase `based on' as requiring great respect but allowing deviation consistent with that respect.” Id. Accordingly, the Court upheld EPA's supplementation of EIA's estimate with information EPA received from prospective biofuel producers—including information submitted after EPA had received EIA's estimate—for the purpose of “determin[ing]” the 2012 cellulosic biofuel standard. Id.

For purposes of this rulemaking, we believe it is appropriate to rely on EIA's most recent reports of actual gasoline and diesel consumption in the United States in 2013 rather than previous projections, such as their October 2012 projection. Doing so allows a more accurate assessment of a percentage standard that will help to ensure that the volume of cellulosic biofuel we have determined should be used for compliance in 2013 will in fact be required. This approach is also consistent with our use of actual cellulosic biofuel production data for 2013, rather than projections, in deriving the cellulosic biofuel standard. We have used EIA's March 2014 Short-Term Energy Outlook (STEO)10for the gasoline and diesel statistics. Gasoline and diesel volumes are adjusted to account for renewable fuel contained in the EIA projections. To estimate the ethanol and biodiesel projected volumes for the purposes of this rule, we have used the values11for ethanol and biodiesel used in 2013 that is provided in the March 2014 STEO.

In CAA section 211(o)(9), enacted as part of the Energy Policy Act of 2005, Congress provided a temporary exemption to small refineries (those refineries with a crude throughput of no more than 75,000 barrels of crude per day) through December 31, 2010. In our initial rulemaking to implement the new RFS program,12we exercised our discretion under section 211(o)(3)(B) and extended this temporary exemption to the few remaining small refiners that met the Small Business Administration's (SBA) definition of a small business (1,500 employees or less company-wide) but did not meet the statutory small refinery definition as noted above.13Because the Energy Independence and Security Act of 2007 did not alter the small refinery exemption in any way, the RFS2 program regulations maintained the exemptions for gasoline and diesel produced by small refineries and small refiners through 2010 (unless the exemption was waived).14

1272 FR 23900, May 1, 2007.

1340 CFR 80.1141, 80.1142.

14See 40 CFR 80.1441, 80.1442.

Congress provided two ways that small refineries could receive a temporary extension of the exemption beyond 2010. One was based on the results of a study conducted by the Department of Energy (DOE) to determine whether small refineries would face a disproportionate economic hardship under the RFS program. In March of 2011, DOE evaluated the impacts of the RFS program on small entities and concluded that some small refineries would suffer a disproportionate hardship.15The other way that small refineries could receive a temporary extension is based on EPA determination of disproportionate economic hardship on a case-by-case basis in response to refiner petitions.16

15“Small Refinery Exemption Study: An Investigation into Disproportionate Economic Hardship,” U.S. Department of Energy, March 2011.

1640 CFR 80.1441(e)(2), 80.1442(h).

The regulations in 80.1405 that specify formulas for calculating the annual renewable fuel standards require that EPA subtract from the total volume of gasoline and diesel estimated to be produced and imported in the compliance year the volume attributed to small refineries and small refiners that have received exemptions from RFS requirements for that year. Depending on the size of the exempt volume, and rounding, this may or may not have the effect of increasing the standard. The purpose of this aspect of the computation is to make it more likely that the appropriate volume of renewable fuel is used by obligated parties notwithstanding the small refinery/small refiner exemptions. At the time the 2013 cellulosic biofuel standard was originally promulgated on August 6, 2013, only one small refinery exemption had been granted for the 2013 compliance year. At this time, EPA has approved three small refinery exemptions for 2013. These three refineries produced a combined total of approximately 820 million gallons of gasoline and 660 million gallons of diesel fuel in 2013. These volumes have been used in the calculations below in Section IV.B.3.17

17EPA's consideration of updated EIA data on 2013 gasoline and diesel use in the rule establishing the 2013 annual standards, and EPA's adjustment of that value to account for small refinery exemptions, are currently being reviewed inMonroev.EPA,Nos. 13-1265, 13-1267, 13-1268 (D.C. Cir.). EPA notes that the cellulosic biofuel standard in this rule would remain unchanged if EPA used data provided in EIA's October 2012 letter to EPA for total gasoline and diesel in 2013 and assumed no small refinery exemptions in calculating the standard.

3. Cellulosic Standard

The values of the variables used to derive the 2013 cellulosic biofuel standard are shown in Table IV.B.3-1.18Terms not included in this table have a value of zero.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

There are no new information collection requirements associated with the standards in this rulemaking. The standards impose no new or different reporting requirements on regulated parties. The existing information collection requests (ICR) that apply to the RFS program are sufficient to address the reporting requirements in the regulations.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule reconsiders the annual volume requirement for cellulosic biofuel for 2013 which is being reduced from the total of 6 million ethanol-equivalent gallons finalized in the 2013 RFS annual rule and published on August 15, 2013 to 810,185 ethanol-equivalent gallons. The impacts of the RFS2 program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670), and this rule will not impose any additional requirements on small entities beyond those already analyzed.

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. This action implements mandate(s) specifically and explicitly set forth by the Congress in Clean Air Act section 211(o) without the exercise of any policy discretion by EPA. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and merely revises the 2013 cellulosic biofuel standard to reflect actual production in 2013 for the RFS program.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action revises the 2013 annual cellulosic biofuel standard for the RFS program and only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will be implemented at the Federal level and affects transportation fuel refiners, blenders, marketers, distributors, importers, exporters, and renewable fuel producers and importers. Tribal governments would be affected only to the extent they purchase and use regulated fuels. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks and because it implements specific standards established by Congress in statutes (section 211(o) of the Clean Air Act).

This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action simply revises the 2013 annual cellulosic standard for renewable fuel under the RFS program.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action does not relax the control measures on sources regulated by the RFS regulations and therefore will not cause emissions increases from these sources.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

VI. Statutory Authority

Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545.

On March 12, 2014, EPA published a Notice of Intent to Delete (79 FR 13967) and a direct final Notice of Deletion (79 FR 13882) for the O'Connor Superfund Site from the National Priorities List. The EPA is withdrawing the Final Notice of Deletion due to adverse comments that were received during the public comment period. After consideration of the comments received, if appropriate, EPA will publish a Notice of Deletion in theFederal Registerbased on the parallel Notice of Intent to Delete and place a copy of the final deletion package, including a Responsiveness Summary, if prepared, in the Site repositories.

DATES:

This withdrawal of the direct final action published March 12, 2014 (79 FR 13882) is effective as of May 2, 2014.

ADDRESSES:

Information Repositories:Comprehensive information on the Site, as well as the comments that we received during the comment period, are available in docket [EPA-HQ-SFUND-1983-0002; FRL-9907-65-Region 1], accessed through thehttp://www.regulations.govWeb site. Although listed in the docket index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statue. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inhttp://www.regulations.govor in hard copy at:

This action terminates a proceeding for two remaining proposals presented at a hearing held in Louisville, Kentucky, January 10-12, 2006. The two proposals (Proposal 2 and Proposal 5) would: Establish intra-market transportation credit provisions for the Appalachian and Southeast Federal milk marketing areas, and reduce payments to producers for milk diverted to locations outside of the geographic boundaries of the Appalachian and Southeast milk marketing areas. The Agricultural Marketing Service believes that the amendments adopted as part of a subsequent proceeding addressed the disorderly marketing conditions that Proposals 2 and 5 were designed to remedy, and therefore action on the proceedings for these two proposals is terminated.

This administrative action is governed by the provisions of sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866 and 13563.

Executive Order 12988

This termination has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect. The Agricultural Marketing Agreement Act of 1937, as amended (Act) (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

Executive Order 13175

This termination has been reviewed in accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal Governments and will not have significant Tribal implications.

Regulatory Flexibility Act and Paperwork Reduction Act

As part of the proceedings conducted for this rulemaking, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601-612) and the Paperwork Reduction Act of 1955 (Pub. L. 104-13) were considered. Because this action terminates the underlying rulemaking proceeding, the economic conditions of small entities are not changes as a result of this action, nor have any compliance requirements changed. Also, this action does not provide for any new or changed reporting and recordkeeping requirements.

Prior Documents in This Proceeding

Notice of Hearing:Issued December 22, 2005; published December 28, 2005 (70 FR 76718).

Partial Final Decision:Issued February 25, 2014; published March 7, 2014 (79 FR 12985).

Preliminary Statement

A public hearing was held January 10-12, 2006, in Louisville, Kentucky, with respect to proposed amendments to the tentative marketing agreement and to the orders regulating the handling of milk in the Appalachian and Southeast marketing areas.

The hearing was called pursuant to the provisions of the Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900). The purpose of the hearing was to receive evidence with respect to the economic and marketing conditions that relate to the proposed amendments to the tentative marketing agreements and to the orders.

This decision terminates the proceeding specifically in regards to Proposal 2, which would establish a new transportation credit balancing fund on the intra-market movements of milk within the marketing areas, and Proposal 5, which would reduce the amount paid to a producer for milk diverted to locations outside of the marketing areas.

Other proposals discussed at the hearing (Proposal 1, 3 and 4) would make other adjustments to the transportation credit provisions of the two orders. Those proposals were addressed in a separate Final Decision (79 FR 12985).

At the hearing, witnesses testified to the inadequacy of the Class I price surface and the related difficulties in attracting adequate milk to meet fluid milk demands. This was the underlying disorderly marketing condition that led to the initial proposals to adjust transportation credit and pooling provisions. Witnesses stated that a separate rulemaking proceeding should be held to review the appropriate ClassI differential levels in the southeastern marketing areas.

Accordingly, the Department held another hearing from May 21-23, 2007 (72 FR 25986)1in Tampa, Florida, to address, among other things, the adequacy of the Class I differential levels in the southeastern marketing areas, and additional changes to the transportation credit balancing fund that would provide for additional transportation cost recovery for milk meeting the order's fluid needs.

1Official Notice is taken of this proceeding (72 FR 25986).

An interim final rule was published on March 17, 2008, (73 FR 14153) that adjusted the Class I price surface for each county within the Appalachian, Florida and Southeast marketing orders. In that interim final rule, the Department decided to increase blend prices through adjustments to the Class I differentials to assist in compensating producers for higher transportation costs. In addition, more stringent pooling standards and other adjustments to the transportation credit provisions were adopted to ensure that milk pooled on the southeastern orders was adequately servicing the market's fluid needs. These amendments included: (1) Extending the number of months in which transportation credit balancing funds are paid (July through December) to include the months of January and February, with the option of the month of June if requested and approved by the Market Administrator; (2) expanding the payment of transportation credits for supplemental milk to include the entire load of milk rather than the calculated Class I utilization; (3) providing more flexibility in the qualification requirements for supplemental milk producers to receive transportation credits; and (4) increasing the monthly transportation credit assessment rate from $0.20 per cwt to $0.30 per cwt. for the Southeast order. A final rule in this related proceeding (79 FR 12963) is being issued simultaneously with this termination of proceeding making these adjustments permanent in the Appalachian and Southeast orders.

The Department believes that the amendments adopted as part of this subsequent proceeding addressed the disorderly marketing conditions that Proposals 2 and 5 were designed to remedy.

Termination of Proceeding

In view of the foregoing, it is hereby determined that subsequent rulemaking proceedings have addressed the disorderly marketing conditions that Proposals 2 and 5 were designed to remedy. Accordingly, the proceeding is terminated.

We propose to adopt a new airworthiness directive (AD) for certain DASSAULT AVIATION Model FALCON 900EX airplanes. This proposed AD was prompted by our determination to introduce a corrosion prevention control program, among other changes, to the maintenance requirements and airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to include the maintenance tasks and airworthiness limitations specified in the Airworthiness Limitations section of the airplane maintenance manual. We are proposing this AD to prevent reduced structural integrity and reduced controllability of the airplane.

For service information identified in this proposed AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internethttp://www.dassaultfalcon.com.You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

Examining the AD Docket

You may examine the AD docket on the Internet athttp://www.regulations.govby searching for and locating Docket No. FAA-2014-0258; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2014-0258; Directorate Identifier 2013-NM-065-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agentfor the Member States of the European Community, has issued EASA Airworthiness Directive 2013-0051, dated March 4, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The airworthiness limitations and maintenance requirements for the Falcon 900EX type design are included in Dassault Aviation Aircraft Maintenance Manual (AMM) chapter 5-40 and are approved by the European Aviation Safety Agency (EASA).

Since that [EASA] AD was issued, Dassault Aviation issued revision 12 of F900EX AMM chapter 5-40 which contains new or more restrictive maintenance requirements and/or airworthiness limitations and introduces, among others, the following changes:

—Tasks renumbering,—Introduction of a Corrosion Prevention Control Program (CPCP),—Upgrade of screwjack of flap actuators from the older to the latest −3 version;—Revised Time Between Overhaul for screwjack of flap actuators −3 version;—Revised interval for checking the screw/nut play on screwjack of flap actuators −3 version;—Removal of service life limit for screwjack of flap actuators;—Test of flap asymmetry protection system. Compliance with this test is required by [a certain French AD * * *, which corresponds to FAA AD 2002-23-20, Amendment 39-12964 (67 FR 71098, November 29, 2002)], but F900EX AMM chapter 5-40 at revision 12 introduces an extended inspection interval;—Inspection procedures of fuselage and wings;—Check of overpressure tightness on pressurization control regulating valves. Compliance with this check is required by EASA AD 2008-0072 [http://ad.easa.europa.eu/blob/easa_ad_2008_0072.pdf/AD_2008-0072_1,which corresponds to FAA AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010)], but F900EX AMM chapter 5-40 at revision 12 introduces an extended inspection interval;—Check of overpressure relief valve vacuum supply lines. The maintenance tasks and airworthiness limitations, as specified in the F900EX AMM chapter 5-40, have been identified as mandatory actions for continued airworthiness of the F900EX type design. Failure to comply with AMM chapter 5-40 at revision 12 may result in an unsafe condition [e.g., reduced structural integrity and reduced controllability of the airplane].

For the reasons described above, this [EASA] AD requires the implementation of the maintenance tasks and airworthiness limitations, as specified in the Dassault Aviation F900EX AMM chapter 5-40 DGT 113874 at revision 12.

You may examine the MCAI in the AD docket on the Internet athttp://www.regulations.govby searching for and locating it in Docket No. FAA-2014-0258.

Relevant Service Information

Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, DGT 113874, Revision 12, dated September 2012, of the Falcon 900EX Maintenance Manual. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

FAA's Determination and Requirements of This Proposed AD

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these actions, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

Costs of Compliance

We estimate that this proposed AD affects 72 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

Estimated CostsActionLabor costParts costCost per productCost on U.S. operatorsMaintenance Program Revision1 work-hour × $85 per hour = $85$0$85$6,120Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entitiesunder the criteria of the Regulatory Flexibility Act.

This AD was prompted by our determination to introduce a corrosion prevention control program, among other changes, to the maintenance requirements and airworthiness limitations. We are issuing this AD to prevent reduced structural integrity and reduced controllability of the airplane.

(f) Compliance

Comply with this AD within the compliance times specified, unless already done.

(g) Revision of Maintenance Program

Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5-40, Airworthiness Limitations, DGT 113874, Revision 12, dated September 2012, of the Falcon 900EX Maintenance Manual. The initial compliance time for accomplishing the actions specified in Chapter 5-40, Airworthiness Limitations, DGT 113874, Revision 12, dated September 2012, of the Falcon 900EX Maintenance Manual, is within the applicable times specified in that maintenance manual, or 30 days after the effective date of this AD, whichever occurs later, except as provided by paragraphs (g)(1) through (g)(4) of this AD.

(1) The term “LDG” in the “First Inspection” column of any table in the service information means total airplane landings.

(2) The term “FH” in the “First Inspection” column of any table in the service information means total flight hours.

(3) The term “FC” in the “First Inspection” column of any table in the service information means total flight cycles.

(4) The term “M” in the “First Inspection” column of any table in the service information means months.

After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (j)(1) of this AD.

(j) Other FAA AD Provisions

The following provisions also apply to this AD:

(1)Alternative Methods of Compliance (AMOCs):The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149. Information may be emailed to:9-ANM-116-AMOC-REQUESTS@faa.gov.Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2)Airworthy Product:For any requirement in this AD to obtain corrective actions from a manufacturer, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they were approved by the State of Design Authority (or its delegated agent, or the DAH with a State of Design Authority's design organization approval). You are required to ensure the product is airworthy before it is returned to service.

(k) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0051, dated March 4, 2013, for related information. This MCAI may be found in the AD docket on the Internet athttp://www.regulations.govby searching for and locating it in Docket No. FAA-2014-0258.

(2) For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internethttp://www.dassaultfalcon.com.You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.

ACTION:

Proposed rule.

SUMMARY:

This rule proposes to revise HUD's Manufactured Housing Program Fee regulations to raise the fee for each transportable section of a manufactured home that the manufacturer produces in accordance with HUD's Manufactured Home Construction and Safe Standards. The fee, referred to as a label fee, is currently set at $39. HUD appropriations acts since 2002 have authorized HUD to modify this fee but HUD has not raised this fee since 2002. For the reasons presented in the preamble to this rule, HUD is proposing to raise the label fee to an amount anticipated to be no less than $95 and no more than $105.

DATES:

Comment Due Date:June 2, 2014.

ADDRESSES:

Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.

1.Submission of Comments by Mail.Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500.

2.Electronic Submission of Comments.Interested persons may submit comments electronically through the Federal eRulemaking Portal athttp://www.regulations.gov.HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through thehttp://www.regulations.govWeb site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

Note:

To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.

No Facsimile Comments.Facsimile (fax) comments are not acceptable.

Public Inspection of Public Comments.All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m., weekdays, at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at (202) 402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service, toll-free, at (800) 877-8339. Copies of all comments submitted are available for inspection and downloading athttp://www.regulations.gov.

Through this rule, HUD proposes to modify the amount of the fee that will be collected from manufactured home manufacturers in accordance with section 620(d) (42 U.S.C. 5419(d)) of the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended by the Manufactured Housing Improvement Act of 2000 (42 U.S.C. 5401et seq.) (the Act). Under section 620(d), label fees may be increased only “(1) as specifically authorized in advance in an annual appropriations Act; and (2) pursuant to rulemaking in accordance with section 553 of title 5.” Section 553 of title 5 United States Code contains the “informal” rulemaking requirements of the Administrative Procedure Act.

HUD collects these fees from each manufacturer through the sale of labels which it must apply to each transportable section of each manufactured housing unit that it produces as evidence that the unit(s) conform to HUD's Manufactured Home Construction and Safety Standards regulations, codified at 24 CFR part 3280. These fees are used to offset HUD's expenses for carrying out its responsibilities under the Act, including carrying out inspections, developing manufactured home construction and safety standards under 42 U.S.C. 5403, and making payments to states as required by statute and HUD's regulations (see 24 CFR 3284.10).

Annual appropriations acts since 2002 have authorized HUD to modify manufactured housing fees pursuant to section 620 in order to ensure a final appropriation for the applicable fiscal year. (See the Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, 2002, Public Law 115 Stat. 651, approved November 26, 2001. See the account language for HUD's Manufactured Housing Fees Trust Fund, at 115 Stat. 669.) The annual appropriations language for the Manufactured Housing Fees Trust Fund account typically reads as follows: “Provided further,that the amount made available under this heading from the general fund shall be reduced as such collections are received during fiscal year [applicable fiscal year inserted] so as to result in a final fiscal year [applicable fiscal year inserted] appropriation from the general fund estimated at not more than $0 and fees pursuant to such section 620 shall be modified as necessary to ensure such a final fiscal year [applicable fiscal year inserted] appropriation.” Similar language is found in the Consolidated Appropriations Act, 2014 (Pub. L. 113-76, approved January 17, 2014). Although the statutory authorization to modify fees has been in place since the 2002 appropriations act, HUD has not revised the manufactured housing fee since 2002. (See HUD's final rule published on August 13, 2002, at 67 FR 52832.) Given the substantial reduction in appropriations for manufactured housing since 2002,1HUD proposes that it is time to increase the fee.

1HUD's appropriations for the Manufactured Housing Fees Trust Fund was $13.566,000 in FY 2002 (Public Law 107-73, approved November 26, 2001); $13,000.000 in FYs 2003, 2004, 2005, 2006, and 2007 (Public Law 108-7, approved February 20, 2003, Public Law 108-199, approved January 23, 2004, Public Law 108-447, approved December 8, 2004, Public Law 109-115, approved November 30, 2005, Public Law 110-5, approved February 15, 2007); $16,000,000 in FYs 2008, 2009, 2010, and 2011(Pub. L. 110-161, approved December 26, 2007, Pub. L. 111-8, approved March 11, 2009, Pub. L. 111-117, approved December 16, 2009, Pub. L. 112-10, approved April 15, 2011) $6,500,000 in FYs 2012 and 2013 (Pub. L. 112-55, approved November 18, 2011, Pub. L. 113-6, approved March 26, 2013); and $7,530,000 in FY 2014 (Public Law 113-73, approved January 17, 2014. The Senate Report (Report 112-83) accompanying the Senate's FY 2012 appropriation bill for HUD (S.1596), proposed $9,000,000 to support manufactured housing and noted that this amount was $5,000,000 below what the Administration requested and almost $7,000,000 below appropriations enacted for Manufactured Housing in 2011. The Senate Report noted that manufactured housing production has declined substantially since peak industry production in 1998, and has continued to decline in 2011 due to a variety of factors. The Senate Report stated that expenditures supporting the programs should therefore reflect and correspond with this decline. The Report noted that the Committee continued language allowing HUD to collect fees and encouraged HUD to take advantage of this authority. See Senate Report 112-83 at page 133. Fiscal Year 2011 was the fiscal year to present the most significant reduction in funding for manufactured housing.

II. This Proposed Rule

When HUD last modified the amount of the fee per transportable section in 2002 (67 FR 52832, August 13, 2002), HUD divided the annual projected number of manufactured housing transportable units (350,000) into the amount appropriated by Congress for the manufactured housing program for the fiscal year. (See 67 FR at 52832.) Since 2002, the number of transportable units and therefore fee collection hasdecreased and HUD has not adjusted its fee to compensate for the decline in production, instead relying on direct appropriations and carryover to fund program operations. While the number of transportable units has declined, program expenses over the last 12 years have risen. Requirements related to overseeing the quality, safety and durability of manufactured housing, necessary and important requirements, have contributed to increased program expenses. As provided in HUD's 2015 budget justification, HUD has estimated that, at current production levels, approximately $10 million annually is required to administer the Manufactured Housing Program in a manner that fulfills HUD's statutory oversight responsibilities.2

2HUD's 2015 Congressional Justification can be found athttp://portal.hud.gov/hudportal/HUD?src=/program_offices/cfo/reports/fy15_CJ.

Based on current projected production levels, the number of manufactured housing transportable units ranges from approximately 95,000 to 105,000 sections. HUD's budget requests for FY 2015 noted that HUD would propose, through rulemaking, an increase in the fee that is likely to be an amount of up to $100 per label. In determining the amount of fee to propose as the new label fee, HUD undertook the following calculations based on the current levels of production.

If the production and placement of manufactured homes were expected to equal 95,000 sections, HUD would need to set the fee at approximately $105 per section. A fee increase of $66 ($39 to $105) would add on average $104 ($66 * 1.57) to the cost of each manufactured home, which is approximately 0.17 percent of the average sales price of a manufactured home.3Meeks (1993) estimates the price elasticity of demand for manufactured homes as −2.4.4This implies that a one percent increase in price will decrease demand by 2.4 percent. If producers fully absorbed the fee increase and sales remained at 95,000 sections, the fee would raise $9.975 million, an increase of $6.27 million. However, if the fee increase were fully passed to the consumer, the sales price of manufactured homes would rise on average 0.17 percent and sales would fall to 94,618 transportable sections. Annual collections would increase by $6.230 million to $9.935 million.

3According to the Census Survey of Manufactured Housing, the average sales price of new manufactured homes is $61,900 and contain, on average, 1.57 sections per home.

If the production and placement of manufactured homes were expected to total 100,000 sections, HUD would need to set the fee at approximately $100 per section. If producers fully absorbed the fee increase and sales remained at 100,000 sections, fee collections would increase by $6.1 million and raise exactly $10 million. However, if the fee increase were fully passed to the consumer, the sales price of manufactured homes would rise on average 0.16 percent and sales would fall to 99,628 transportable sections. This would raise $9.963 million, an increase of $6.063 million.

If the production and placement of manufactured homes were expected to total 105,000 sections, HUD would need to set the fee at approximately $95 per section. If producers fully absorbed the fee increase and sales remained at 105,000 sections, fee collections would increase by $5.846 million and raise exactly $9.975 million. However, if the fee increase were fully passed to the consumer, the sales price of manufactured homes would rise on average 0.15 percent and sales would fall to 104,642 transportable sections. This would raise $9.941 million, an increase of $5.846 million.

Each of these calculations would yield HUD close to the $10 million that HUD has estimated that it needs to administer the program based on the current level of production. HUD believes that a fee of $100 per label, which is the average of the three calculations, would meet the program needs for this fiscal year and succeeding fiscal years barring subsequent appropriations that require further changes. Based on public comment received in response to this proposal, HUD may receive information and data that helps HUD better determine what is an appropriate fee for current production levels. At this time, however, HUD believes that the new label fee would be no less than $95 and would be no more than $105.

HUD recognizes that whether a new fee is $95, $100, or $105, it is a substantial fee increase, but one that is necessary to sustain the Manufactured Housing Program and ensure that HUD can appropriately carry out its statutory responsibilities. It is also a fee increase that is overdue given HUD has not increased the fee in 12 years, and the production of manufactured homes has declined significantly since 2002.

HUD recognizes that the Federal government is more than halfway through the FY 2014 and that, given the length, at times, of the rulemaking process, application of a new fee may apply only to a portion of FY 2014, or may not be feasible until FY 2015. Nevertheless, the fee is important to sustain the program, and HUD is proceeding with this rulemaking to seek the earliest application possible of a new fee. The increase in fee that HUD proposes in this rule, $100 (but possibly $95 but no less than $95 and no more than $105), is offered as one that would be appropriate for succeeding fiscal years, again, barring subsequent appropriations that require further changes.

HUD solicits and welcomes comments from the manufactured housing industry on the increased fee and any additional factors, information or data that HUD should consider in determining an appropriate fee for the current production level.

III. Justification for 30-Day Comment Period

It is the general practice of the Department to provide a 60-day public comment period on all proposed rules. However, the Department is shortening its usual 60-day public comment period to 30 days for this proposed rule. This rule proposes to adjust the current label fee that is collected from manufacturers of manufactured homes upwards from $39 to possibly $105. While HUD acknowledges that it is not an insignificant fee increase, HUD has been public the last two years about the need to possibly raise the fee to $1005to sustain the Manufactured Housing Program, and HUD has received no significant response from industry on the need to raise significantly the current fee. For the reasons already addressed in this preamble, it is important to make the amount of the fee effective as soon as possible so that the funds will be available as soon as possible to offset the expenses incurred by the Department in connection with the manufactured housing program authorized by the Act, and to sustain the program. For these reasons, the Department has determined that a 30-day public comment period is appropriate.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifiesthat the rule will not have a significant economic impact on a substantial number of small entities. This rule would not have a total economic impact of more than $6.1 million, which is the maximum additional amount of fees that HUD has determined would be collected if the fee is raised to $100 per label.

By annual appropriations acts, Congress requires HUD to collect fees from manufacturers of manufactured housing to ensure the annual appropriation that HUD provides in a given fiscal year. In addition to the authority to set label fees, the reports accompanying HUD's recent annual appropriations acts reflect strong Congressional encouragement for HUD to respond to the annual appropriations act authority to modify the label fees to obtain additional funding to support the manufactured housing program. The per-unit fee would remain as has always been the case to be proportional in its impact, with greater collections from larger manufacturers and less collections from smaller manufacturers.

HUD has concluded, generally, that, as is often the case with increased fees placed on manufacturers of products used by consumers, the fee increase will be passed through to consumer, thereby minimizing the impact on manufacturers large and small. If the cost of the fee is passed on to the consumer, the purchase price of a manufactured home would increase, and placements of new manufactured homes would decrease slightly below currently forecasted levels. If manufacturers absorb the cost, however, the effect of the increase would result in lower profits for the manufacturers and sales would remain unchanged. In either scenario, this change in fee collections would represent a transfer to tax payers from manufacturers of manufactured housing or consumers purchasing new manufactured housing, since the increased fee collections will replace funds collected through federal tax collections.

For these reasons, HUD submits that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant economic impact on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that would meet HUD's program responsibilities.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule does not impose any Federal mandates on any State, local, or tribal governments or the private sector within the meaning of the UMRA.

Environmental Impact

In accordance with 24 CFR 50.19(c)(6) of the HUD regulations, this rule sets forth fiscal requirements which do not constitute a development decision that affects the physical condition of specific project areas or building sites, and therefore is categorically excluded from the requirements of the National Environmental Policy Act and related Federal laws and authorities.

Federalism Impact

Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on State and local governments and is not required by statute, or preempts State law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.

List of Subjects in 24 CFR Part 3284

Consumer protection, Manufactured homes.

Accordingly, for the reasons discussed in this preamble, HUD proposes to amend 24 CFR part 3284 as follows:

PART 3284—MANUFACTURED HOUSING PROGRAM FEE1. The authority citation for 24 CFR part 3284 continues to read as follows:Authority:

42 U.S.C. 3535(d), 5419, and 5424.

2. Revise § 3284.5 to read as follows:§ 3284.5Amount of fee.

Each manufacturer, as defined in § 3282.7 of this chapter, must pay a fee of $100 per transportable section of each manufactured housing unit that it manufactures under the requirements of part 3280 of this chapter.

The Copyright Royalty Judges seek written comments on two petitions for rulemaking seeking amendments to the regulations for filing notice of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act.

DATES:

Comments are due no later than June 2, 2014. Reply comments are due no later than June 16, 2014.

ADDRESSES:

The Copyright Royalty Board (CRB) prefers that comments and reply comments be submitted electronically tocrb@loc.gov.In the alternative, commenters shall send a hard-copy original, five paper copies, and an electronic copy on a CD either by U.S. mail or hand delivery. The CRB will not accept multiple submissions from any commenter. Electronic documents must be in either PDF format containing accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). Commenters MAY NOT submit comments and reply comments by an overnight delivery service other than the U.S. Postal Service Express Mail. If commenters choose to use the U.S. Postal Service (including overnight delivery), they must address their comments and reply comments to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977. If commenters choose hand delivery by a private party, they must direct their comments and reply comments to the Copyright Office Public Information Office, Library of Congress, James Madison Memorial Building, Room LM-401, 101 Independence Avenue SE., Washington, DC 20559-6000. If commenters choose delivery by commercial courier, they must directtheir comments and reply comments to the Congressional Courier Acceptance Site located at 2nd and D Street NW., Washington, DC, on a normal business day between 8:30 a.m. and 4 p.m. The envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue SE., Washington, DC 20559-6000.

On October 6, 2006, the Copyright Royalty Judges (Judges) issued interim regulations published in theFederal Registerfor the delivery and format of reports of use of sound recordings for the statutory licenses set forth in sections 112 and 114 of the Copyright Act. 71 FR 59010.1The goal of those interim regulations was to establish format and delivery requirements for reports of use so that royalty payments to copyright owners pursuant to the section 112 and 114 licenses could be made from April 1, 2004, forward based upon actual data on the sound recordings transmitted by digital audio services.

1Prior to the enactment of the Copyright Royalty and Distribution Reform Act of 2004 (Reform Act), Public Law 108-409, 118 Stat. 2341, responsibility for establishing the notice and recordkeeping requirements under sections 112 and 114 of the Copyright Act resided with the Librarian of Congress and the Copyright Office. The Reform Act transferred this responsibility to the Judges. As of May 31, 2005, the effective date of the Reform Act, the Copyright Office had promulgated regulations governing the filing of notices of intention to use the section 112 and/or 114 statutory licenses,—as required by 17 U.S.C. 112(e)(7)(A) and 114(f)(4)(B), respectively—the required data elements to be provided in a report of use, and the frequency of reporting.See69 FR 11515 (Mar. 11, 2004) and 69 FR 58261 (Sept. 30, 2004). The Judges carried forward those regulations.See71 FR 59010-11 (Oct. 6, 2006) (full background of Copyright Office notice and recordkeeping rulemaking).

On December 30, 2008, the Judges published a notice of proposed rulemaking (NPRM) setting forth proposed revisions to the interim regulations adopted in October 2006. 73 FR 79727. The most significant revision proposed by the Judges was to expand the reporting period to implement year-round census reporting. Further, on April 8, 2009, the Judges published a notice of inquiry (NOI) to obtain additional information concerning the likely costs and benefits stemming from the adoption of the proposed census reporting provision as well as information on any alternatives to the proposal that might accomplish the same goals as the proposal in a less burdensome way, particularly with respect to small entities. 74 FR 15901.

Following a notice and comment process, the Judges published a final rule on October 13, 2009, amending the interim regulations and establishing requirements for census reporting for all but those broadcasters who pay no more than the minimum fee for their use of the license. 74 FR 52418. The final regulations established requirements by which copyright owners may receive reasonable notice of the use of their sound recordings and under which records of use were to be kept and made available by entities of all sizes performing sound recordings.See, e.g.,17 U.S.C. 114(f)(4)(A). As with the interim regulations adopted in 2006, the final regulations adopted in 2009 represented baseline requirements. In other words, digital audio services remained free to negotiate other formats and technical standards for data maintenance and delivery and to use those in lieu of regulations adopted by the Judges, upon agreement with the Collective. The Judges indicated that they had no intention of codifying these negotiated variances in the future unless and until they come into such standardized use as to effectively supersede the existing regulations.2

2In 2011, SoundExchange filed with the Judges a petition for rulemaking to consider adopting regulations to authorize SoundExchange “ `to use proxy reporting data to distribute to copyright owners and performers certain sound recording royalties for periods before 2010 that are otherwise undistributable due to licensees' failure to provide reports of use' or their provision of ‘reports of use that are so deficient as to be unusable.' ”Notice and Recordkeeping for Use of Sound Recordings Under Statutory License, Final rule, Docket No. RM 2011-5,76 FR 45695 (Aug. 1, 2011). After soliciting comment on SoundExchange's proposal, the Judges adopted final regulations relating to distributions based on proxy data.Id.

II. Petition for Clarification and Petition for Rulemaking

On October 28, 2009, College Broadcasters, Inc. (CBI), American Council on Education and Intercollegiate Broadcasting Systems, Inc. (collectively, Petitioners) made a motion with the Judges for clarification with respect to one issue raised by the final regulation. Petitioners noted that the final regulation exempted minimum-fee webcasters that are FCC-licensed broadcasters from the census reporting requirement, but did not appear to exempt minimum-fee educational stations that are not FCC-licensed broadcasters from the same requirement.See Joint Petition for Clarificationat 2-3 (Oct. 28, 2009) (Joint Petition). Petitioners asked the Judges to “clarify” that the exemption extended to minimum fee unlicensed educational stations.3Id.at 4.

3On November 12, 2009, before the Judges ruled on this motion, CBI filed a Petition for Review of the final regulation with the United States Court of Appeals for the District of Columbia Circuit ( D.C. Circuit) (Appeal No. 09-1276). This appeal was held in abeyance pending the outcome of an appeal of the Judges' final determination inDocket No. 2009-1 CRB Webcasting III.The D.C. Circuit concluded that appeal on July 6, 2012, holding that the manner by which the Judges were appointed was unconstitutional, dictating a statutory remedy, and remanding to the Judges.Intercollegiate Broad. Sys. v. Copyright Royalty Bd.,684 F.3d 1332, 1340-41 (D.C. Cir. 2012),cert. denied,133 S. Ct. 2735 (2013). The Judges issued their initial determination on remand on January 9, 2014, and the D.C. Circuit transferred CBI's appeal of the final regulation to the United States District Court for the District of Columbia.See Order,in Appeal No. 09-1276 (D.C. Cir. Oct. 28, 2013). By a separate document today in theFederal Register, the Judges have affirmed adoption of the final regulation.

The Judges have reviewed Petitioners' motion for clarification and determined that it is not properly before the Judges. In their motion, Petitioners are not seeking a clarification of the final regulation; they are seeking a substantive change. The Judges thus determined that Petitioners' motion should be treated as a petition for rulemaking and made subject to notice and public comment.

The Judges received a second petition for rulemaking from SoundExchange, Inc. (SoundExchange), the sole Collective designated by the Judges to collect and distribute sound recording royalties under the section 112(e) and 114 licenses.See Petition of SoundExchange, Inc. for a Rulemaking to Consider Modifications to Notice and Recordkeeping Requirements for Use of Sound Recordings Under Statutory License(Oct. 21, 2013) (SX Petition). SoundExchange proposes major modifications to 37 CFR part 370.

III. Joint Petition

Petitioners' proposal concerns the applicability of requirements in the final regulation that parties availing themselves of the statutory licenses under 17 U.S.C. 112 and 114 report on all performances of sound recordings that are subject to the licenses. One of the stated goals of the final regulation was to move most users of sound recordings toward full census actual total performance (ATP) reporting and away from reporting of sampled data.Notice and Recordkeeping for Use of Sound Recordings under Statutory License, Final rule, Docket No. RM 2008-7,74 FR 52418, 52420 (Oct. 13, 2009). The final regulation contained an exception, however, for “the lowest intensity users of sound recordings in asingle category of users—broadcasters typically engaged in simulcasting their over-the-air broadcasts on the Web.”Id.These broadcasters, who pay no more than the minimum fee for their use of sound recordings under the statutory license (i.e.,“minimum fee broadcasters”), are permitted to continue reporting sampled Aggregate Tuning Hour (ATH) data on a quarterly basis. 37 CFR 370.4(d)(3)(i). All other services must report census ATP data on a monthly basis. 37 CFR 370.4(d)(3)(i).

Petitioners point out that, unlike minimum fee broadcasters, Educational Stations4that only pay the minimum fee are subject to monthly reporting of census data if they do not qualify as broadcasters—i.e.,“a type of Commercial Webcaster or Noncommercial Webcaster that owns and operates a terrestrial AM or FM radio station that is licensed by the Federal Communications Commission [“FCC”].” 37 CFR 380.2(b).

4Petitioners use the term “Educational Stations” to refer to any webcaster (not just FCC-licensed webcasters) that:

(A) Is directly operated by, or affiliated with and officially sanctioned by a domestically accredited primary or secondary school, college, university or other post-secondary degree-granting educational institution; and

(B) The digital audio transmission operations of which are, during the course of the year, staffed substantially by students enrolled in such institution; and

(C) Is not a “public broadcasting entity” (as defined in 17 U.S.C. 118(g)) qualified to receive funding from the Corporation of Public Broadcasting pursuant to the criteria set forth in 47 U.S.C. 396; and

(D) Is exempt from taxation under section 501 of the Internal Revenue Code, has applied for such exemption, or is operated by a State or possession or any governmental entity or subordinate thereof, or by the United States or District of Columbia, for exclusively public purposes.

Joint Petitionat 2 n.1 (emphasis and citations omitted). While the Judges' proposed amendment to the definition of “minimum fee broadcaster” does not incorporate CBI's singular reference to “Educational Stations,” the proposed amendment retains the substance of CBI's proposal.Seeproposed § 370.4(b)(2).

Petitioners assert that the full census ATP reporting requirement presents a serious problem for unlicensed minimum fee Educational Stations. They argue that, for the same reasons that the Judges found it was not reasonable for minimum fee FCC-licensed broadcasters to move toward full census ATP reporting, it is also not reasonable for minimum fee unlicensed Educational Stations to move toward full census ATP reporting.

Therefore, Petitioners propose that the definition of a “minimum fee broadcaster” in 37 CFR 370.4(b)(3) be amended to read: “(3) Aminimum fee broadcasteris a nonsubscription service whose payments for eligible transmissions do not exceed the annual minimum fee set forth in 17 U.S.C. 112 and 114; and either (i) meets the definition of a broadcaster pursuant to § 380.2(b) of this chapter; or (ii) is an Educational Station, that is, any webcaster that (A) is directly operated by, or affiliated with and officially sanctioned by a domestically accredited primary or secondary school, college, university or other post-secondary degree-granting educational institution; and (B) the digital audio transmission operations of which are, during the course of the year, staffed substantially by students enrolled in such institution; and (C) is not a “public broadcasting entity” (as defined in 17 U.S.C. 118(g)) qualified to receive funding from the Corporation for Public Broadcasting pursuant to the criteria set forth in 47 U.S.C. 396; and (D) is exempt from taxation under section 501 of the Internal Revenue Code, has applied for such exemption, or is operated by a State or possession or any governmental entity or subordinate thereof, or by the United States or District of Columbia, for exclusively public purposes.”Joint Petitionat 4.

Petitioners also provide for the Judges' consideration alternative language so that the amendment addresses entities other than Educational Stations: “(3) Aminimum fee broadcasteris a nonsubscription service whose payments for eligible transmissions do not exceed the annual minimum fee set forth in 17 U.S.C. 112 and 114; and either (i) meets the definition of a broadcaster pursuant to § 380.2(b) of this chapter; or (ii) is a `noncommercial webcaster' as defined in 17 U.S.C. 114(f)(5)(E)(i).”Id.at 4 n.5.

The new definition of “minimum fee broadcaster” would be incorporated by reference in 37 CFR 370.4(d)(3)(ii), which provides that such entities may proceed with quarterly sample ATH data reports.

Finally, Petitioners assert that failure to make the proposed change could cause hundreds of minimum fee paying FCC-unlicensed Educational Stations to cease operations or to become infringers simply because they lack an FCC license. Petitioners assert further that copyright owners and performers would see a decline in royalties paid and distributed.

The Judges seek comment on Petitioners' proposal. The Judges especially seek comment on how such unlicensed minimum fee Educational Stations, as defined by Petitioners, have been reporting under the current regulations. Have any ceased operations, as predicted by Petitioners? If so, how many? If not, does the need still exist for Petitioners' proposed amendment? Have Petitioners, in the first instance, persuasively made their case that such a change is warranted? If so, should the Judges adopt Petitioners' preferred definition, which applies only to Educational Stations, or the broader, alternate definition?

IV. SoundExchange Petition

SoundExchange proposes several amendments in eight areas of the current regulations, which, it asserts, will better reflect and accommodate the large and growing number of services paying royalties under the section 112 and 114 licenses.5The proposed amendments seek “to address important operational problems affecting the accuracy of royalty distributions and to ensure that the regulations will remain workable as the digital music market continues to mature and the scale of reporting increases.”See SX Petitionat 2. In SoundExchange's view, the suggested amendments described herein reflect the elements frequently reported incorrectly by licensees and strike the requisite balance between not being too burdensome on services and meeting the statutory purpose of ensuring that the proper copyright owners and performers are compensated for the use of their work.Id.

5As of the date its petition for rulemaking was filed, SoundExchange stated it received reporting and payments from more than 2,200 different services.SX Petitionat 2.

A. Report of Use and Statement of Account Consolidation, Matching, and Identification

In its petition, SoundExchange describes the difficulties it currently faces in matching (1) the royalty payments made by licensees to (2) the statement of account (SOA) “allocating the payment to a specific service and time period and reflecting the calculation of the payment” and (3) the report of use (ROU) “detailing the usage corresponding to the payment.”Id.at 5. Such difficulty, according to SoundExchange, results, in part, from licensees that offer multiple services consolidating their reporting and identifying their services in ways that hinder SoundExchange's ability to credit payments to the appropriate licensee and to make accurate distributions based on actual usage.Id.

SoundExchange asserts the proposed amendments in this area will allow SoundExchange easily to discern the relationship between payment and usage from the documents provided by the licensee. To that end, SoundExchange proposes a number of amendments.

1. Consolidation and Matching

First, SoundExchange seeks a requirement that payments, SOAs, and ROUs for affiliated entities be provided at the enterprise level, if feasible.Id.at 7. If not, then SoundExchange seeks a requirement that “any consolidation of ROUs and SOAs for affiliated licensees be the same; that is, that there be a one-to-one relationship between usage reported in an ROU and SOA unless SoundExchange and the licensee agree otherwise.”Id.at 7 (footnote omitted). In support of its proposal, SoundExchange points out that the one-to-one correspondence between ROUs and SOAs already exists for broadcasters under 37 CFR 380.13(g)(1)(viii).Id.at 8. SoundExchange argues that requiring a service to identify itself by the same name on its SOAs and ROUs also would go a long way in establishing the desired one-to-one relationship. Currently, SoundExchange explains, “a single service frequently may be identified by different names on its SOAs and ROUs.”Id.at 8. To rectify this problem, SoundExchange proposes amendments to § 370.4(e)(7)(i)(A) and (e)(5), requiring identification of the service on both the SOA and ROU by the “most specific service name appropriate to the level of consolidation . . . at the enterprise level, if feasible,” and using that same name on the ROU file name, respectively.Id.at 9.

SoundExchange points out that it recognizes that services may need a certain amount of flexibility in the consolidation of their reporting, as well as the ability to periodically change that consolidation. Such flexibility, however, according to SoundExchange, hinders its ability to “relate the name used on a particular associated SOA and ROU to the specific service offerings and relevant parent enterprise and payment history.”Id.at 9. To accommodate such flexibility for the licensee and maintain its ability to properly match payments to the proper account, SoundExchange proposes amendments to §§ 370.3(d) and 370.4(e)(7)(i)(B), requiring services to provide on its SOA, ROU, and payment an account number/identification number assigned by SoundExchange.6Id.at 10.

6SoundExchange notes that it currently uses numerical identifiers on an internal basis to better identify accounts “easily and unambiguously.”Id.at 10. The proposed language would apply only to those services for which SoundExchange has assigned such identifier.Id.

Next, SoundExchange contends that provision of separate ROUs should be required for each different type of service, in light of the current requirement that separate SOAs must be provided for services subject to different rates since payment calculations differ.Id.To make this requirement clear, SoundExchange proposes language be added to § 370.4(d)(1).

2. ROU Headers and Category Codes

SoundExchange requests that the Judges require the use of ROU file headers because such headers “identify the columns in the ROU to allow SoundExchange to (1) recognize readily when a licensee has submitted an ROU with the columns out of order . . . , and (2) be able to ingest such ROUs without manual intervention.”Id.at 10. Mandatory use of ROU file headers would, in SoundExchange's opinion, “significantly improve [its] ability to load ROUs without manual intervention and/or follow-up with the service.”Id.SoundExchange specifically proposes to eliminate the report generation date and delimiters from the header format, as such requirements, in its opinion, are unimportant, and to add several new lines to the header (and the reasons therefor):

Station call letters, if multiple broadcast stations are included in the log, in order to allow SoundExchange to identify the scope of usage covered by the ROU before ingesting it.

Audience measurement type (ATH (aggregate tuning hours) or ATP (actual total performances)), so it will be clear which type of usage is reported in the ROU.

Checksum (total audience measurement reported on the ROU) in order to allow SoundExchange to confirm whether it received and ingested all of the data the licensee intended to provide, and thereby minimize effort and reduce the risk of inaccurate distribution if an ROU is corrupted.

Character encoding format used in the file, in order to allow SoundExchange to read contents of the file as the licensee intended them.

Digital signature certifying the ROU, if the licensee chooses to include the signature in the ROU itself, in order to provide a permissible location for the signature currently required under 37 CFR 370.4(d)(4).

SX Petitionat 11.

SoundExchange acknowledges that licensees initially opposed providing name and contact information in an ROU header as “unnecessarily burdensome” since that information appears elsewhere in the ROU as well as in the Notice of Use.Id.at 12,citing71 FR 59010, 59012 (Oct. 6, 2006). SoundExchange attempts to refute this contention, arguing: (1) That information in the notices of use can be out of date, (2) licensees frequently fail to provide contact information in a cover letter or email, as currently required by 37 CFR 370.4(e)(3)(ii) and (iii), and (3) the possible separation of the ROU and such external documents.Id.at 12. Adoption of this proposal, SoundExchange points out, would render the current provisions in § 370.4(e)(3)(ii) and (iii) superfluous and suggests their deletion.

SoundExchange also asserts that adoption of its proposed amendments regarding consolidation, matching, and account numbers/identifiers,see supra,would enable the deletion of the current category codes required in 37 CFR 370.4(d)(2)(ii). SoundExchange explains category codes can be useful “for distinguishing different types of transmissions with different royalty rates when they are combined in a single ROU, and for matching ROUs to SOAs when the matching is not otherwise apparent.”Id.at 14. This purpose, according to SoundExchange, would be fulfilled by the above proposed amendments. Should the Judges decide not to adopt the proposed amendments concerning consolidation and matching, SoundExchange requests retention of the category codes requirement, provided that such codes are updated to reflect current rate structures. SoundExchange asserts that such updates can be done either by the Judges through their notice and recordkeeping authority under 17 U.S.C. 803(c)(3), or their authorization of SoundExchange to publish an updated list of codes.Id.

3. Direct Delivery of Notices of Use

Services intending to operate under the section 112 and 114 licenses of the Copyright Act must file a Notice of Use (NOU) with the Licensing Division of the Copyright Office. 37 CFR 370.2. SoundExchange describes the NOU's importance to its distribution process, namely, information in the NOU is used to set up the database records of licensees and services from whom payment is expected.Id.at 13. The current regulations, SoundExchange laments, do not contain a mechanism to provide it with timely receipt of the NOU. To satisfy its operational need for access to NOUs, SoundExchange proposes changes to § 370.2(d) to require licensees to send copies of their NOUs to SoundExchange, either by mail or email, at the same time they file them with the Copyright Office.Id.at 14.

B. Flexibility in Reporting Format

SoundExchange seeks to have codified in the recordkeeping regulations the already-recognized ability of it and licensees to vary reporting requirements by agreement.Id.at 15,citing71 FR at 59012 (Oct. 6,2006)(“[C]opyright owners and services are always free to negotiate different format and delivery requirements that suit their particular needs and situations . . .”). Moreover, the proposed amendments, argues SoundExchange, will entice licensees to “do business with SoundExchange electronically,” which in turn will result in more efficiency for both SoundExchange and licensees.

1. Certification/Signature Requirements

The current regulations require that ROUs “include a signed statement” by the appropriate officer or representative attesting to the accuracy of the information provided in the ROU. 37 CFR 370.4(d)(4). SoundExchange points out that the regulation does not require a handwritten signature and notes that in practice an electronic signature has been embedded in the ROU or provided in a cover email or “other ancillary document.”SX Petitionat 16. To better reflect current practices and allow for future possibilities, SoundExchange proposes adding language to § 370.4(d)(4) to read “Reports of Use shall include or be accompanied by a signed statement . . .”.7

7SoundExchange uses its proposal regarding ROU signatures to urge the Judges to exercise their authority under 17 U.S.C. 803(c)(4) to eliminate the requirement of a handwritten signature on statements of account provided pursuant to 37 CFR 380.4(f)(3), 380.13(f)(3), 380.23(f)(4), and 384.4(f)(3). The Judges decline SoundExchange's invitation as moot. The Judges addressed §§ 380.4, 380.13 and 380.23 in their Initial Determination on Remand in theWebcasting IIIproceeding,see Determination After Remand of Rates and Terms for Royalty Years 2011-2015, Docket No. 2009-1 CRB Webcasting III(Jan. 9, 2014), and the Judges' adoption of the parties' settlement agreement in theBusiness Establishments IIproceeding removed the handwritten signature requirement in § 384.4(f)(3).See,78 FR 66276 (Nov. 5, 2013).

2. Character Encoding

SoundExchange asserts that the current requirement that ROUs be provided in the form of ASCII text files hampers its ability to make accurate distributions of royalties.SX Petitionat 17. In SoundExchange's opinion, the ASCII character encoding format is outdated and suffers from myriad limitations,e.g.,allowance of encoding for only 128 characters and the inability to support non-Latin alphabets, including certain marks used in such alphabets, used in several other languages. Consequently, SoundExchange concludes, “many or most computer systems have migrated to more modern character encoding formats,” of which there are “many alternatives.”Id.SoundExchange reports that ROUs apparently are provided in 5 to 10 different non-ASCII character encoding formats, although licensees do not identify what formats they use. This lack of information, SoundExchange states, leaves it “trying to guess what character encoding was used, and risks loss of data if the wrong format is used to read the ROU when it is loaded.”Id.at 18.

SoundExchange's proposed solution to this problem is to “modernize” the regulations by:

Recognizing the reality that services use encoding formats other than ASCII by providing flexibility for them to choose an appropriate encoding format.

Requiring licensees to identify the character encoding format they use and include it in the ROU header, so that SoundExchange can read ROUs as they were intended, convert them properly, and not lose data.

Requiring use of the UTF-8 encoding format if feasible. . . .

Id.SoundExchange recommends use of the UTF-8 format because, in its opinion, “it can support every system of writing . . . [so its] use should generally be feasible”; “it is probably the dominant character encoding format today, and its use has become a best practice”; and “[i]t is the default character encoding format in major Linux/Unix operating system implementations, which tend to be used by larger licensees.”Id.Regardless of the preference for the UTF-8 format, SoundExchange makes assurances that it can accept other encoding formats as long as licensees identify the format used.Id.3. XML File Format

Another proposal made by SoundExchange with regard to the requirement that ROUs be provided in text file format is to allow XML (Extensible Markup Language) as an alternative, but not mandatory, format for delivery of ROUs.Id.at 19. SoundExchange describes XML as “a common and flexible means of encoding documents” offering “many advantages over text files,” such as allowing “more flexible inclusion in ROU data files of information that now must be included in the file name or header, enabl[ing] variable fields . . . , facilitat[ing] automatic validation of ROUs, allow[ing] real-time streaming of ROU data, and otherwise simplify[ing] SoundExchange's processing of ROUs.”Id.

C. Facilitating Unambiguous Identification of Recordings

SoundExchange recounts that throughout the history of these notice and recordkeeping regulations, “the most contentious issues have generally concerned the data items required to be reported on the individual lines of an ROU to identify the specific recordings used by a service.”SX Petitionat 19. SoundExchange alleges that the current set of data elements do not allow for the unambiguous identification of recordings; as a result, SoundExchange states that a “significant number” of such recordings cannot be identified.Id.at 20. SoundExchange identifies three areas of reporting as illustrative of this problem: Compilations, re-records,8and classical music.

8SoundExchange defines “re-records” as those instances where an artist has recorded his/her most popular songs multiple times,e.g.,with a different band, a different label, “live” versus original album.Id.at 20.

In relation to compilations and re-records, SoundExchange characterizes the failure of licensees to provide the International Standard Recording Code (ISRC)9as the primary impediment to its ability to identify the sound recording.Id.Although licensees currently can report the album and label name as an alternative to the ISRC,see§ 370.4(d)(2)(v), SoundExchange contends that this alternative can be problematic with respect to compilations because (1) the album title differs from the original album on which the recording appeared, (2) the album title is ambiguous,e.g.,“Greatest Hits,” and (3) the label distributing the compilation differs from the label distributing the original album.Id.10Similar problems exist with respect to re-records, according to SoundExchange, because oftentimes “the payees are different for each of the recordings due to different copyright owners, different `featured artists' . . . changing membership of a featured band over time, different producers, and different nonfeatured artists.”Id.at 20-21.

9SoundExchange notes that ISRCs “are widely used by record companies and most digital distribution companies for purposes of rights administration, and are used for reporting purposes in direct license arrangements between record companies and webcasting and on-demand services.”Id.at 22.

10SoundExchange states that licensees frequently report as “various” the artists on a compilation with multiple artists.Id.at 20. The Judges note that the Copyright Office specifically deemed such identification as unacceptable.See69 FR 11524 (Mar. 11, 2004) (“[W]here the sound recording performed is taken from an album that contains various featured artists,i.e.,a compilation, it is not acceptable to report the featured artist as `Various.' The featured artist of the particular sound recording track performed must be reported.”).

To rectify these issues, SoundExchange proposes requiring licensees to provide the ISRC (where available), as well as the album title and marketing label, as preexisting subscription services (PSS) currently arerequired to do under 37 CFR 370. 3(d)(5), (6), (8). The benefits for this change, in SoundExchange's opinion, are twofold: (1) It represents the “easiest” solution for services to implement because ISRCs are typically available to the services, and (2) it provides the “greatest positive effect” to SoundExchange's match rate.Id.at 22.

With respect to classical music, SoundExchange charges that services' incorrect identification of classical tracks—namely, reporting the composers as artists, in direct contravention of the Copyright Office's “clear instructions” to the contrary—severely hamper its ability to unambiguously identify the sound recording.Id.at 21citing69 FR 11523-24 (Mar. 11, 2004). SoundExchange recommends the following amendments to § 370.4(d)(2):

Rather than completing the current featured artist field, a service would identify the featured artist by reporting (1) ensemble (i.e.,name of orchestra or other group), (2) conductor, and (3) soloist(s), where applicable, to the extent that any of the foregoing is identified on the commercial product packaging.

Rather than completing the current sound recording title field, a service would identify the sound recording title by reporting (1) composer, (2) title of overall work, and (3) title of movement or other constituent part of the work, if applicable.

Id.at 24. These proposed amendments, in SoundExchange's estimation, “specify clearly the level of precision necessary to identify the featured artist and sound recording title of classical tracks” with minimal impact on text and XML format reports.Id.D. Reporting Non-Payable Tracks

The rate structure adopted by the Judges in their recent decision setting the rates and terms under sections 112 and 114 for satellite digital audio radio services (SDARs) allows services to exclude use of certain categories of sound recordings from royalty payments.11See Determination of Rates and Terms for Preexisting Subscription Services and Preexisting Satellite Digital Audio Radio Services, Final rule and order, Docket No. 2011-1 CRB PSS/Satellite II,78 FR 23054, 23072-73 (Apr. 17, 2013) (deductions allowed for directly licensed recordings and pre-1972 recordings). The regulations governing SDARs require the service to identify the tracks for which it claims an exclusion from royalties.See37 CFR 382.13(h). SoundExchange requests the Judges to include in these notices and recordkeeping regulations a similar provision “requiring that ROUs for [any] service relying on the statutory licenses include reporting of all recordings used by the service, with a new field flagging any usage excluded from the service's royalty payment.”Id.at 26 (footnote omitted). SoundExchange argues that requiring all services to identify any excluded sound recordings better enables SoundExchange to ensure the accuracy of a service's royalty payments.Id.The proposed provision, SoundExchange points out, only affects those services that exclude sound recordings from their royalty payments.

11The regulations governing webcasting, where royalties are paid on a per-performance basis, exclude from the definition of “performance” those sound recordings not requiring a license and those that are licensed separately.See37 CFR 380.2, 380.11, and 380.21.

E. Late or Never-Delivered ROUs

SoundExchange proposes amendments to address those instances where a licensee submits its ROU late, never submits an ROU, or submits an unusable ROU.12

12For 2012, SoundExchange states that 41% of the ROUs received were submitted more than five days late, 31% of licensees never submitted any ROU, and 585 licensees submitted ROUs with an average match rate under 50%. Moreover, according to SoundExchange, in 2012, 69% of licensees have failed at least once to submit a required ROU.Id.at 26.

1. Proxy Distribution

First, SoundExchange seeks from the Judges standing authorization to use proxy data13for distribution of royalties in those instances where a licensee either fails to submit an ROU or submits an ROU that is unusable and the likelihood of SoundExchange obtaining meaningful information in order to effectuate a distribution is small.Id.at 28. SoundExchange notes that proxy distributions have been authorized in two prior instances: (1) In 2004, the ROUs submitted by PSS constituted the proxy data for distributions to all other types of services for the period 1998-2004,see69 FR 58261 (Sept. 30, 2004); and (2) in 2011, for the period 2004-2009, ROUs of other services of the same type for a particular calendar year served as proxy data for those services not submitting an ROU during that calendar year.See37 CFR 370.3(i), 370.4(f).

13“Proxy data,” as defined by SoundExchange, is “data about usage, other than the actual usage for which the relevant royalties were paid, which is used in place of (i.e.,as a `proxy' for) data concerning the actual relevant usage in making a royalty distribution.”Id.at 27 n13.

Unlike in the prior instances of proxy distributions, where the distribution methodology was specified in the regulations, the language proposed by SoundExchange here is more general in that it does not specify a particular methodology. SoundExchange charges that “a standing regulation (as opposed to one targeted at a one-time distribution and based on an analysis of the situation at that time) should provide flexibility for SoundExchange to reassess the details of the distribution methodology from time to time to achieve fair results based on circumstances at that time and its most recent data and experience.”Id.at 29. Given the composition of its board of directors—representatives of the recording industry (both major and independent labels), recording artists, artist representatives and music organizations—SoundExchange argues that it is “well-situated to make a determination of when a proxy distribution is justified and of what precise methodology should be employed.”Id.

The Judges recognize that the distribution methodology may not necessarily have to be specified in a regulation; however, the Judges believe that SoundExchange should have to disclose the methodology serving as the basis for a proxy distribution and afford copyright owners and performers an opportunity to object to the proffered methodology. Thus, the Judges seek comment on how to accomplish these goals without codification in a regulation. Should the amended regulation include language requiring SoundExchange to post the proffered methodology for a particular proxy distribution on its Web site and provide a timeframe in which affected copyright owners and performers may object? What is an adequate and reasonable timeframe for objections to be lodged? If there is an objection, what process should be adopted in order to resolve the objection? Is there some other process?

2. Late Fees

Next, SoundExchange urges the Judges to impose a late fee for ROUs that are untimely and/or noncompliant.Id.at 29. The proposed language offered by SoundExchange states, in pertinent part, that the late fee “shall accrue from the due date of the [ROU] until a fully compliant [ROU] is received by the Collective or the relevant royalties are distributed pursuant to [a proxy distribution], provided that, in the case of a timely provided but noncompliant [ROU], the Collective” notifies the Service within 90 days of “any noncompliance that is reasonablyevident to the Collective.”14See SX Petitionat Exhibit B at proposed § 370.6(a).

In support of its proposal, SoundExchange stresses that the ROU's importance to the distribution process equals that of the royalty payment and the SOA, namely, without it, no distribution can be made.Id.at 30. SoundExchange notes that the Judges have imposed late fees for late payments and late SOAs,see, e.g.,37 CFR 382.13(d), and argues that the same reasoning supports adoption of a late fee for ROUs, especially in light of the frequency with which ROUs are submitted in an untimely and/or noncompliant manner.Id.Finally, SoundExchange claims that in its experience the late fees imposed for SOAs promote compliance.Id.

The Judges specifically seek comment on SoundExchange's proposal to have the late fee accrue from the original due date until receipt by SoundExchange of a fully compliant ROU, in light of the Judges' previously stated concern that a late fee provide “an effective incentive” to comply in a timely manner without being “punitive.”See73 FR 4080, 4099 (Jan. 24, 2008). Does the proposed language assuage that concern? If not, should the Judges impose a cap on the amount of late fees SoundExchange can collect? If so, what should the cap be?

3. Accelerated Delivery of ROUs

Finally, SoundExchange asks the Judges to change the due date for ROUs submitted by all non-PSS services from the current 45 days after the close of the relevant reporting period to 30 days.15SX Petitionat 30. The proposed change, in SoundExchange's view, better reflects the “30-day [reporting] cycle for digital music services common under commercial music license agreements.”Id.SoundExchange contends the requirement of services to report on a monthly, rather than the previous quarterly, basis obviates the need for the 45-day due date.16Id.Adoption of this proposed amendment, according to SoundExchange, will allow “more time for data quality assurance without affecting the timing of distributions,” thereby expediting the distribution of royalties.Id.at 31.

15ROUs for PSS would remain 45 days after the close of the relevant reporting period.See37 CFR 370.3(b).

Another impediment to its ability to smoothly execute the royalty distribution process alleged by SoundExchange is the “occasional” receipt of corrected ROUs and SOAs submitted by Services upon their own initiative.Id.at 31. By way of example, SoundExchange notes that Services paying on a percentage-of-revenue basis submit corrected SOAs to reflect an adjustment of their revenue for a certain period.Id.Submissions of corrected ROUs and SOAs, according to SoundExchange, cause major disruptions to the “flow of royalties through SoundExchange,” especially when such corrections are submitted after completion of the initial processing of a ROU/SOA.Id.To combat such disruptions, SoundExchange proposes the addition of a new § 370.6 which would bar licensees “from claiming credit for a downward adjustment in royalty allocations” when the corrected ROU/SOA is submitted 90 days after the submission of the initial ROU/SOA and would allow SoundExchange to “allocate any adjustment to the usage reported on the service's next ROU, rather than the ROU for the period being adjusted.”Id.The proposed amendment, in SoundExchange's view, affords licensees “a fair opportunity to correct their own errors without unreasonably burdening the royalty distribution process.”Id.at 32.

G. Recordkeeping

SoundExchange also proposes amendments to the recordkeeping requirements. It contends that the current provisions in 37 CFR 370.3(h) and 370.4(d)(6) are useful but incomplete. SoundExchange contends that currently no clear mechanism exists to allow it to substantiate royalty payments that depend on the usage asserted on a service's ROUs and SOAs. SoundExchange asserts that some services have adopted business rules systematically to exclude from their reported usage performances of less than a certain length, an exemption that SoundExchange represents is inconsistent with the CRB's regulations.SX Petitionat 33. SoundExchange contends that such instances of underreporting can be determined by comparing the usage reported on the ROUs to the original records from which the ROUs were generated.Id.To permit such comparison, SoundExchange proposes a change to § 370.4(d)(5) to require services to retain and provide access to unsummarized source records of usage in electronic form, such as server logs or other native data.Id.Where a licensee relies upon a third-party contractor for its transmissions, SoundExchange proposes that the licensee be required to retain either server logs or native records of usage, if practicable, or, otherwise, retain the native data that the contractor provided to the licensee.Id.

H. Proposals SoundExchange Characterizes as Housekeeping

SoundExchange also proposes a number of changes that it characterizes as “housekeeping” changes. Although the Judges take no position at this time on whether any of the proposed changes in this section should be adopted, as a preliminary matter the Judges question whether certain of these proposals are properly characterized as “housekeeping.”

1. Quattro Pro Template

SoundExchange proposes that the Judges delete the requirement in 37 CFR 370.4(e)(2) that SoundExchange provide template ROUs in Quattro Pro format, which SoundExchange contends is no longer necessary.SX Petitionat 34.

2. Inspection of ROUs

SoundExchange also proposes that the Judges amend the requirement in 37 CFR 370.5(d) regarding the right to inspect ROUs.Id.SoundExchange proposes two changes to § 370.5(d). First, SoundExchange proposes to amend the rule to give featured artists the same right to inspect ROUs as copyright owners currently have.Id.at 36. Second, SoundExchange proposes to remove the last sentence of § 370.5(d), which requires the Collective to use its best efforts, including searching Copyright Office public records and published directories of sound recording copyright owners, to locate copyright owners to make available reports of use.Id.SoundExchange contends that this provision reflects an outdated view of the way in which the section 114 license is administered and is no longer practicable.Id.

3. Redundant Confidentiality Provisions

SoundExchange proposes eliminating confidentiality provisions in §§ 370.3(g) and 370.4(d)(5), which, SoundExchange contends, are redundant, given the presence of a confidentiality provision in § 370.5(e) that applies to ROUs generally.Id.

4. Clarification of New Subscription Services and Definition of Aggregate Tuning Hours

SoundExchange also proposes amendments to clarify which new subscription services are subject toreporting on an aggregate tuning hour basis and which are required to report performances.Id.at 37. SoundExchange contends that there are two principal types of new subscription services, one of which provides a “PSS-like service through cable and satellite television distributors and pays royalties pursuant to 37 CFR Part 383 on a percentage of revenue basis” and one of which provides subscription webcasting and pays royalties pursuant to 37 CFR Part 380 Subpart A on a per-performance basis.Id.SoundExchange contends that the former type of service was intended to be permitted to use the aggregate tuning hour reporting method but the latter was not. As a result, SoundExchange proposes that the Judges amend 37 CFR 370.4(d)(2)(vii) and the definition of aggregate tuning hours in 37 CFR 370.4(b)(1) to narrow the types of new subscription services that may use the aggregate tuning hour reporting method.Id.at 37-38. SoundExchange also proposes updating the list of services in the aggregate tuning hours definition in 37 CFR 370.4(b)(1) entitled to report on an aggregate tuning hour basis purportedly to conform to changes to that list that the Judges adopted in 2009.Id.at 38.

5. Miscellaneous

SoundExchange proposes to change references to SoundExchange's office location in 37 CFR 370.4(e)(4). A generic reference would replace the address listed in the current rule, which, SoundExchange states, is no longer accurate.Id.

Next, SoundExchange proposes changes to 37 CFR 370.5(c) to state that SoundExchange must file an annual report by September 30 of the year following the reporting year. SoundExchange contends that the September 30 deadline would allow SoundExchange to have sufficient time after the end of the reporting year, to prepare a “typical corporate annual report incorporating the audited numbers.”Id.at 39. According to SoundExchange, the proposed September 30 deadline would supersede an earlier deadline set forth in a 2007 order from the Judges in which they expressed a preference for SoundExchange to post its annual report no later than the end of the first quarter of the year following the year that is the subject of the report.See Order Granting in Part and Denying in Part Services' Motion to Compel SoundExchange to Provide Discovery Relating to the Testimony of Barrie Kessler, Docket No. 2005-5 CRB DTNSRA,at 3 (June 6, 2007).

Finally, SoundExchange's remaining proposed amendments seek to: (1) Institute a consistent convention for capitalization of defined terms, which, SoundExchange states, the current rules lack,id.;(2) eliminate the term “AM/FM Webcast” in 37 CFR 370.4(b)(2) because, according to SoundExchange, the term does not appear in the current regulations,id.at 40; and (3) refer to the statutory licenses consistently as section 114 and section 112(e), unless the circumstance indicates a more specific reference,id.

V. Conclusion

The Judges seek comment on each of the proposed amendments herein and request that commenters give special attention to those issues specifically identified by the Judges in relation to a particular proposed amendment.

The Judges stress that, by setting forth the proposed amendments in this NPRM, the Judges are neither adopting them nor endorsing their adoption. The Judges will decide whether to adopt, modify, or reject any of the proposed amendments after reviewing any comments they receive in response to this NPRM.

List of Subjects in 37 CFR Part 370

Copyright, Sound recordings.

Proposed Regulations

In consideration of the foregoing, the Copyright Royalty Judges propose to amend 37 CFR part 370 as follows.

PART 370—NOTICE AND RECORDKEEPING REQUIREMENTS FOR STATUTORY LICENSES1. The authority citation for part 370 continues to read as follows:Authority:

17 U.S.C. 112(e)(4), 114(f)(4)(A).

2. Amend § 370.1 as follows:a. By revising paragraph (a);b. In paragraph (b), by removing “114(d)(2)” and adding “114” in its place each place it appears and by removing “preexisting subscription service, preexisting satellite digital audio radio service, nonsubscription transmission service, new subscription service, business establishment service” and adding “Preexisting Subscription Service, Preexisting Satellite Digital Audio Radio Service, Nonsubscription Transmission Service, New Subscription Service, Business Establishment Service” in its place;c. In paragraphs (e) through (g), by removing “service” and adding “Service” in its place each place it appears; andd. In paragraph (i), by removing “114(d)(2)” and adding “114” in its place.

The revision reads as follows:

§ 370.1General definitions.

(a) ANotice of Use of Sound Recordings Under Statutory Licenseis a written notice to sound recording copyright owners of the use of their works under section 112(e) or 114 of title 17, United States Code, or both, and is required under this part to be filed by a Service in the Copyright Office.

3. Amend § 370.2 as follows:a. In paragraph (a), by removing “114(d)(2)” and adding “114” in its place;b. In paragraph (b)(5), by removing “subscription service, preexisting satellite digital audio radio service, nonsubscription transmission service, new subscription service or business establishment service” and adding “Subscription Service, Preexisting Satellite Digital Audio Radio Service, Nonsubscription Transmission Service, New Subscription Service or Business Establishment Service” in its place;c. By revising paragraph (d); andd. In paragraph (e), by removing “Recordings under” and adding “Recordings Under” in its place.

The revision reads as follows:

§ 370.2Notice of use of sound recordings under statutory license.(d)Filing notices; fees.The original and three copies shall be filed with the Licensing Division of the Copyright Office and shall be accompanied by the filing fee set forth in § 201.3(e) of this title. Notices shall be placed in the public records of the Licensing Division. The Notice and filing fee shall be sent to the Licensing Division at either the address listed on the form obtained from the Copyright Office or to: Library of Congress, Copyright Office, Licensing Division, 101 Independence Avenue SE., Washington, DC 20557-6400. A copy of each Notice also shall be sent to each Collective designated by determination of the Copyright Royalty Judges, at the physical address or electronic mail address posted on the Collective's Web site or identified in its Notice of Designation as Collective under statutory license pursuant to § 370.5(b). A Service that, on or after July 1, 2004, shall make digital transmissions and/or ephemeral phonorecords of sound recordings under statutory license shall file a Notice of Use of Sound Recordings Under Statutory License with theLicensing Division of the Copyright Office and send a copy of the Notice to each Collective prior to the making of the first ephemeral phonorecord of the sound recording and prior to the first digital transmission of the sound recording.4. Amend § 370.3 as follows:a. In paragraph (a), by removing “reports of use” and adding “Reports of Use” in its place, by removing “114(d)(2)” and adding “114” in its place, and by removing “preexisting subscription services” and adding “Preexisting Subscription Services” in its place.b. In paragraph (c) introductory text, by removing “preexisting subscription service” and adding “Preexisting Subscription Service” in its place in the first sentence and by removing “subscription services” and adding “Subscription Services” in its place each place it appears;c. In paragraph (c)(2), by removing “preexisting subscription service” and adding “Preexisting Subscription Service” in its place;d. Amend paragraph (d):i. By revising the introductory text;ii. In paragraph (1), by removing “preexisting subscription service or entity” and adding “Preexisting Subscription Service” in its place; andiii. In paragraph (5), by removing “preexisting subscription service” and adding “Preexisting Subscription Service” in its place.e. By revising paragraph (e);f. In paragraph (f), by revising the introductory text;g. By revising paragraph (f)(1);h. By removing paragraph (g);i. By redesignating paragraph (h) as paragraph (g); andj. By removing paragraph (i).

The revisions read as follows:

§ 370.3Reports of use for sound recordings under statutory license for preexisting subscription services.

(d)Content.A “Report of Use of Sound Recordings Under Statutory License” shall be identified as such by prominent caption or heading, and shall include the account number assigned to the Preexisting Subscription Service by the Collective (if the Preexisting Subscription Service has been notified of such account number by the Collective), the character encoding format used to generate the Report of Use (e.g., UTF-8), and the Preexisting Subscription Service's “Intended Playlists” for each channel and each day of the reported month. The “Intended Playlists” shall include a consecutive listing of every recording scheduled to be transmitted, and shall contain the following information in the following order:

(e)Signature.Reports of Use shall include or be accompanied by a signed statement by the appropriate officer or representative of the Preexisting Subscription Service attesting, under penalty of perjury, that the information contained in the Report is believed to be accurate and is maintained by the Preexisting Subscription Service in its ordinary course of business. The signature shall be accompanied by the printed or typewritten name and title of the person signing the Report, and by the date of signature.

(f)Format.Reports of Use should be provided on a standard machine-readable medium, such as diskette, optical disc, or magneto-optical disc, and should conform as closely as possible to the following specifications, unless the Preexisting Subscription Service and the Collective have agreed otherwise:

(1) Delimited text format, using pipe characters as delimiter, with no headers or footers, or XML (Extensible Markup Language) format, in either case with character encoding in the UTF-8 format if feasible;

5. Revise § 370.4 to read as follows:§ 370.4Reports of use of sound recordings under statutory license for nonsubscription transmission services, preexisting satellite digital audio radio services, new subscription services and business establishment services.

(a)General.This section prescribes rules for the maintenance and delivery of Reports of Use of sound recordings under section 112(e) or section 114 of title 17 of the United States Code, or both, by Nonsubscription Transmission Services, Preexisting Satellite Digital Audio Radio Services, New Subscription Services, and Business Establishment Services.

(b)Definitions.(1)Aggregate Tuning Hoursare the total hours of programming that a Preexisting Satellite Digital Audio Radio Service, a service as defined in § 383.2(h) of this chapter, a Business Establishment Service or a Nonsubscription Service qualifying as a Minimum Fee Broadcaster has transmitted during the reporting period identified in paragraph (d)(3) of this section to all listeners within the United States over the relevant channels or stations, and from any archived programs, that provide audio programming consisting, in whole or in part, of transmissions by means of a Preexisting Satellite Digital Audio Radio Service, a service as defined in § 383.2(h) of this chapter, a Business Establishment Service or a Nonsubscription Service qualifying as a Minimum Fee Broadcaster, less the actual running time of any sound recordings for which the Service has obtained direct licenses apart from 17 U.S.C. 114 or which do not require a license under United States copyright law. For example, if a Minimum Fee Broadcaster transmitted one hour of programming to 10 simultaneous listeners, the Minimum Fee Broadcaster's Aggregate Tuning Hours would equal 10. If 3 minutes of that hour consisted of transmission of a directly licensed recording, the Minimum Fee Broadcaster's Aggregate Tuning Hours would equal 9 hours and 30 minutes. If one listener listened to the transmission of a Minimum Fee Broadcaster for 10 hours (and none of the recordings transmitted during that time was directly licensed), the Minimum Fee Broadcaster's Aggregate Tuning Hours would equal 10.

(2) AMinimum Fee Broadcasteris a Nonsubscription Transmission Service whose payments for eligible transmissions do not exceed the annual minimum fee established for licensees relying upon the statutory licenses set forth in 17 U.S.C. 112(e) and 114; and either:

(i) Meets the definition of a broadcaster pursuant to § 380.2 of this chapter; or

(ii) Is directly operated by, or affiliated with and officially sanctioned by a domestically accredited primary or secondary school, college, university or other post-secondary degree-granting educational institution; and

(iii) The digital audio transmission operations of which are, during the course of the year, staffed substantially by students enrolled in such institution; and

(iv) Is not a “public broadcasting entity” (as defined in 17 U.S.C. 118(g)) qualified to receive funding from the Corporation for Public Broadcasting pursuant to the criteria set forth in 47 U.S.C. 396; and

(v) Is exempt from taxation under section 501 of the Internal Revenue code, has applied for such exemption, or is operated by a State or possession or any governmental entity or subordinate thereof, or by the United States or District of Columbia, for exclusively public purposes.

(3) APerformanceis each instance in which any portion of a sound recording is publicly performed to a listener by means of a digital audio transmission or retransmission (e.g., the delivery of anyportion of a single track from a compact disc to one listener) but excluding the following:

(i) A performance of a sound recording that does not require a license (e.g., the sound recording is not copyrighted);

(ii) A performance of a sound recording for which the Service has previously obtained a license from the copyright owner of such sound recording; and

(iii) An incidental performance that both:

(A) Makes no more than incidental use of sound recordings including, but not limited to, brief musical transitions in and out of commercials or program segments, brief performances during news, talk and sports programming, brief background performances during disk jockey announcements, brief performances during commercials of sixty seconds or less in duration, or brief performances during sporting or other public events; and

(B) Other than ambient music that is background at a public event, does not contain an entire sound recording and does not feature a particular sound recording of more than thirty seconds (as in the case of a sound recording used as a theme song).

(4)Play Frequencyis the number of times a sound recording is publicly performed by a Service during the relevant period, without respect to the number of listeners receiving the sound recording. If a particular sound recording is transmitted to listeners on a particular channel or program only once during the reporting period, then the Play Frequency is one. If the sound recording is transmitted 10 times during the reporting period, then the Play Frequency is 10.

(c)Delivery.Reports of Use shall be delivered to Collectives that are identified in the records of the Licensing Division of the Copyright Office as having been designated by determination of the Copyright Royalty Judges. Reports of Use shall be delivered on or before the thirtieth day after the close of each reporting period identified in paragraph (d)(3) of this section.

(d)Report of Use.(1)Separate reports.A Nonsubscription Transmission Service, Preexisting Satellite Digital Audio Radio Service or a New Subscription Service that transmits sound recordings pursuant to the statutory license set forth in section 114 of title 17 of the United States Code and makes ephemeral phonorecords of sound recordings pursuant to the statutory license set forth in section 112(e) of title 17 of the United States Code need not maintain a separate Report of Use for each statutory license during the relevant reporting periods. However, a provider of Services subject to different statutory rates shall provide a separate Report of Use for each such type of Service. When corporate affiliates provide multiple Services of the same type, they shall if feasible consolidate their reporting onto a single Report of Use for that type of Service. Each Report of Use must cover the same scope of activity (e.g., the same Service offering and the same channels or stations) as any related statement of account, unless the Service and the Collective have agreed otherwise.

(2)Content.For a Nonsubscription Transmission Service, Preexisting Satellite Digital Audio Radio Service, New Subscription Service or Business Establishment Service that transmits sound recordings pursuant to the statutory license set forth in section 114 of title 17 of the United States Code, or the statutory license set forth in section 112(e) of title 17 of the United States Code, or both, each Report of Use shall contain the following information, in the following order, for each sound recording transmitted during the reporting periods identified in paragraph (d)(3) of this section, whether or not the Service is paying statutory royalties for the particular sound recording;

(i) The name of the Nonsubscription Transmission Service, Preexisting Satellite Digital Audio Radio Service, New Subscription Service or Business Establishment Service making the transmissions;

(ii) The featured artist, except in the case of a classical recording;

(iii) The sound recording title, except in the case of a classical recording;

(iv) The International Standard Recording Code (ISRC), where available and feasible;

(v) The album title;

(vi) The marketing label;

(vii) For a Nonsubscription Transmission Service except those qualifying as Minimum Fee Broadcasters and for a New Subscription Service other than a service as defined in § 383.2(h) of this chapter: The actual total Performances of the sound recording during the reporting period;

(viii) For a Preexisting Satellite Digital Audio Radio Service, a service as defined in § 383.2(h) of this chapter, a Business Establishment Service or a Nonsubscription Service qualifying as a Minimum Fee Broadcaster: The actual total Performances of the sound recording during the reporting period or, alternatively, the:

(A) Aggregate Tuning Hours;

(B) Channel or program name; and

(C) Play Frequency;

(ix) In the case of a classical recording:

(A) The ensemble (e.g., orchestra or other group) identified on the commercial product packaging, if any;

(B) The conductor identified on the commercial product packaging, if any;

(C) The soloist(s) identified on the commercial product packaging, if any;

(D) The composer of the relevant musical work;

(E) The overall title of the relevant musical work (e.g., the name of a symphony); and

(F) The title of the relevant movement or other constituent part of the musical work, if applicable; and

(x) The letters “NLR” (for “no license required”) if the Service has excluded the sound recording from its calculation of statutory royalties in accordance with regulations setting forth the applicable royalty rates and terms because transmission of the sound recording does not require a license, or the letters “DL” (for “direct license”) if the Service has excluded the sound recording from its calculation of statutory royalties in accordance with regulations setting forth the applicable royalty rates and terms because the Service has a license directly from the copyright owner of such sound recording.

(3)Reporting period.A Report of Use shall be prepared:

(i) For each calendar month of the year by all Services other than a Nonsubscription Service qualifying as a Minimum Fee Broadcaster; or

(ii) For a two-week period (two periods of 7 consecutive days) for each calendar quarter of the year by a Nonsubscription Service qualifying as a Minimum Fee Broadcaster and the two-week period need not consist of consecutive weeks, but both weeks must be completely within the calendar quarter.

(4)Signature.Reports of Use shall include or be accompanied by a signed statement by the appropriate officer or representative of the Service attesting, under penalty of perjury, that the information contained in the Report is believed to be accurate and is maintained by the Service in its ordinary course of business. The signature shall be accompanied by the printed or typewritten name and the title of the person signing the Report, and by the date of the signature.

(5)Documentation.A Service shall, for a period of at least three years from the date of service or posting of a Report of Use, keep and retain a copy of the Report of Use. During that period, a Service shall also keep and retain inmachine-readable form unsummarized source records of usage underlying the Report of Use, such as server logs. If the Service uses a third-party contractor to make transmissions and it is not practicable for the Service to obtain and retain unsummarized source records of usage underlying the Report of Use, the Service shall keep and retain the original data concerning usage that is provided by the contractor to the Service.

(e)Format and delivery.(1)Electronic format only.Reports of Use must be maintained and delivered in electronic format only, as prescribed in paragraphs (e)(2) through (7) of this section. A hard copy Report of Use is not permissible.

(2)File format: facilitation by provision of spreadsheet templates.All Report of Use data files must be delivered in text or XML (Extensible Markup Language) format, with character encoding in the UTF-8 format if feasible. To facilitate such delivery, SoundExchange shall post and maintain on its Internet Web site a template for creating a Report of Use using Microsoft's Excel spreadsheet and instruction on how to convert such spreadsheets to UTF-8 text files that conform to the format specifications set forth below. Further, technical support and cost associated with the use of the spreadsheets is the responsibility of the Service submitting the Report of Use.

(3)Delivery mechanism.The data contained in a Report of Use may be delivered by any mechanism agreed upon between the Service and SoundExchange, or by File Transfer Protocol (FTP), email, or CD-ROM according to the following specifications:

(i) A Service delivering a Report of Use via FTP must obtain a username, password and delivery instructions from SoundExchange. SoundExchange shall maintain on a publicly available portion of its Web site instructions for applying for a username, password and delivery instructions. SoundExchange shall have 15 days from date of request to respond with a username, password and delivery instructions.

(ii) A Service delivering a Report of Use via email shall append the Report as an attachment to the email.

(iii) A Service delivering a Report of Use via CD-ROM must compress the reporting data to fit onto a single CD-ROM per reporting period.

(4)Delivery address.Reports of Use shall be delivered to SoundExchange at the physical or electronic mail address posted on its Web site or identified in its Notice of Designation as Collective under statutory license pursuant to § 370.5(b). SoundExchange shall forward electronic copies of these Reports of Use to any other Collectives defined in this section.

(5)File naming.Each data file contained in a Report of Use must be given a name by the Service, consisting of the most specific service name appropriate to the scope of usage reflected in the Report of Use and statement of account, followed by the start and end date of the reporting period. The start and end date must be separated by a dash and in the format of year, month, and day (YYYYMMDD). Each file name must end with the file type extension of “.txt”. (Example:AcmeMusicCo20050101-20050331.txt).

(6)File type and compression.(i) All data files must be in text or XML (Extensible Markup Language) format, with character encoding in the UTF-8 format if feasible.

(ii) A Report of Use must be compressed in one of the following zipped formats:

(iii) Zipped files shall be named in the same fashion as described in paragraph (e)(5) of this section, except that such zipped files shall use the applicable file extension compression name described in this paragraph (e)(6).

(7)Files with headers.(i) Services shall submit files with headers, in which the following elements, in order, must occupy the first 17 rows of a Report of Use:

(A) Name of Service as it appears on the relevant statement of account, which shall be the most specific service name appropriate to the scope of usage reflected in the Report of Use and statement of account;

(B) The account number assigned to the Service by the Collective for the relevant Service offering (if the Service has been notified of such account number by the Collective);

(C) Name of contact person;

(D) Street address of the Service;

(E) City, state and zip code of the Service;

(F) Telephone number of the contact person;

(G) Email address of the contact person;

(H) Start of the reporting period (YYYYMMDD);

(I) End of the reporting period (YYYYMMDD);

(J) Station call letters, if multiple broadcast stations are included in the Report of Use, or otherwise a blank line;

(K) Number of rows in data file, beginning with 18th row;

(L) Checksum (the total of the audience measurements reported on the Report of Use);

(M) Audience measurement type (ATP if the Service reports actual total Performances, ATH if the Service reports Aggregate Tuning Hours);

(N) Character encoding format used to generate the Report of Use (e.g., UTF-8);

(O) Digital signature pursuant to paragraph (d)(4) of this section, if included in the Report of Use;

(P) Blank line; and

(Q) Report headers (Featured Artist, Sound Recording Title, etc.).

(ii) Each of the rows described in paragraphs (e)(7)(i)(A) through (G) of this section must not exceed 255 alphanumeric characters. Each of the rows described in paragraphs (e)(7)(i)(H) and (I) of this section should not exceed eight alphanumeric characters.

(iii) Data text fields, as required by paragraph (d)(2) of this section, begin on row 18 of a Report of Use. A carriage return must be at the end of each row thereafter. Abbreviations within data fields are not permitted.

(iv) The text indicator character must be unique and must never be found in the Report's data content.

(v) The field delimiter character must be unique and must never be found in the Report's data content. Delimiters must be used even when certain elements are not being reported; in such case, the Service must denote the blank data field with a delimiter in the order in which it would have appeared.

6. Amend § 370.5 as follows:a. By revising paragraph (a);b. In paragraph (c), by adding “The Collective should post its Annual Report by no later than September 30 of the year following the year that is the subject of the report.” after “administrative expenses.”;c. By revising paragraph (d); andd. By adding new paragraph (g).

The revisions and addition read as follows:

§ 370.5Designated collection and distribution organizations for reports of use of sound recordings under statutory license.

(a)General.This section prescribes rules under which Reports of Use shall be collected and made available under section 112(e) and 114 of title 17 of the United States Code.

(d)Inspection of Reports of Use by copyright owners and featured artists.The Collective shall make copies of the Reports of Use for the preceding threeyears available for inspection by any sound recording copyright owner or featured artist, without charge, during normal office hours upon reasonable notice. The Collective shall predicate inspection of Reports of Use upon information relating to identity, location and status as a sound recording copyright owner or featured artist, and the copyright owner's or featured artist's written agreement not to utilize the information for purposes other than royalty collection and distribution, and determining compliance with statutory license requirements, without express consent of the Service providing the Report of Use.

(g)Authority to agree to special reporting arrangements.A Collective is authorized to agree with Services concerning reporting requirements to apply in lieu of the requirements set forth in this part.

7. Add new §§ 370.6 and 370.7 to read as follows:§ 370.6Late reports of use.

(a)Late fee.A Service shall pay a late fee for each instance in which any Report of Use is not received by the Collective in compliance with the regulations in this part by the due date. Such late fee shall be a monthly percentage of the payment associated with the late Report of Use, where such percentage is the percentage rate specified for late payments in the applicable regulations setting forth royalty rates and terms for Services of that type. The late fee shall accrue from the due date of the Report of Use until a fully compliant Report of Use is received by the Collective or the relevant royalties are distributed pursuant to paragraph (b) of this section, provided that, in the case of a timely provided but noncompliant Report of Use, the Collective has notified the Service within 90 days regarding any noncompliance that is reasonably evident to the Collective.

(b)Proxy distribution.In any case in which a Service has not provided a compliant Report of Use required under this part for use of sound recordings under section 112(e) or section 114 of title 17 of the United States Code, or both, and the board of directors of the Collective determines that further efforts to seek missing Reports of Use from the Service would not be warranted, the Collective may determine that it will distribute the royalties associated with the Service's missing Reports of Use on the basis of a proxy data set approved by the board of directors of the Collective.

§ 370.7Correction of reports of use and statements of account.

If a Service discovers that it has submitted a Report of Use or statement of account for a particular reporting period that is in error, the Service should promptly deliver to the Collective a corrected Report of Use or statement of account, as applicable. However, more than 90 days after the Service's first submission of a Report of Use or statement of account for a particular reporting period, as the case may be, the Service cannot claim credit for a reduction in royalties by submitting a corrected Report of Use or statement of account for the reporting period. Subject to the foregoing, when a Service submits a corrected Report of Use or statement of account for a prior reporting period, the Collective may allocate any upward or permitted downward adjustment in the Service's royalty obligations to the usage reported on the Service's next Report of Use provided in the ordinary course.

The EPA is proposing to approve a Tribal implementation plan (TIP) submitted by the Swinomish Indian Tribal Community (SITC or the Tribe). The TIP was submitted to the EPA on June 28, 2012, and supplementary submittals were received on September 24, 2013, November 18, 2013, and January 28, 2014. The TIP establishes regulations for open burning that will apply to all persons within the exterior boundaries of the Swinomish Reservation (the Reservation). The EPA approved the SITC for treatment in the same manner as a State (TAS) to regulate open burning on the Swinomish Reservation under the Clean Air Act (CAA or the Act) on February 16, 2010. This action proposes to federally approve the TIP. If the EPA finalizes this approval, the provisions of the TIP would become federally enforceable. Upon the effective date of a final action to approve the TIP, the SITC's open burning TIP would replace the Federal Implementation Plan (FIP) provisions regulating open burning within the exterior boundaries of the Swinomish Reservation.

DATES:

Comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R10-OAR-2012-0557, by one of the following methods:

D.Hand Delivery:U.S. EPA Region 10 Mailroom, 9th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. Attention: Claudia Vergnani Vaupel, Office of Air, Waste, and Toxics (AWT-107). Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-R10-OAR-2012-0557. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going throughwww.regulations.gov,your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficultiesand cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about the EPA's public docket visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.

Docket:All documents in the electronic docket are listed in thewww.regulations.gov index.Although listed in the index, some information is not publicly available,i.e.,CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy during normal business hours at the Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101.

Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:

Table of ContentsI. Background for This Proposed ActionII. CAA Requirements and the Role of Indian TribesA. What is the Clean Air Act and its relationship to Indian Tribes?B. What is an implementation plan?C. How do Tribal implementation plans compare to State implementation plans?III. Tribal Implementation Plan RequirementsIV. Evaluation of the SITC TIPA. What air quality goals does the SITC TIP address?B. Has the SITC obtained a determination from the EPA that it is eligible for TAS for purposes of the TIP?C. Has the SITC submitted to the EPA a TIP that is approvable as satisfying the requirements of the Act and relevant regulations?D. How would the SITC administer the TIP?E. What requirements does the SITC TIP contain?V. Proposed ActionVI. Statutory and Executive Order ReviewsI. Background for This Proposed Action

The EPA is proposing to approve a TIP submitted by the SITC for approval under section 110 of the CAA. The TIP regulates open burning practices and establishes a Tribal regulatory program applicable to all persons within the exterior boundaries of the Reservation under the CAA to maintain or improve ambient air quality related to open burning. The Swinomish TIP for open burning was formally submitted to the EPA on June 28, 2012, and the EPA received supplementary submittals on September 24, 2013, November 18, 2013, and January 28, 2014.1

1The EPA is taking no action on the provisions identified in the TIP submission, Part I, “The following provisions are not part of the TIP being submitted to EPA for approval”.

If the EPA finalizes approval of the TIP, the SITC TIP for open burning would replace the currently effective open burning provisions in the FIP for the Swinomish Reservation (found in 40 CFR 49.10960(g)). The EPA promulgated the FIP to protect air quality on 39 Indian reservations in Idaho, Oregon, and Washington, including the Swinomish Reservation. The EPA intended that these rules would be implemented by the EPA, or a delegated Tribal authority, until replaced by TIPs (67 FR 51802, March 18, 2002).

II. CAA Requirements and the Role of Indian TribesA. What is the Clean Air Act and its relationship to Indian Tribes?

The Clean Air Act (Act) was originally passed in 1970 and has been the subject of substantial amendments, most recently in 1990. Among other things, the Act: Requires the EPA to establish National Ambient Air Quality Standards (NAAQS) for certain pollutants; requires the EPA to develop programs to address specific air quality problems; establishes the EPA's enforcement authority; and provides for air quality research. As part of the 1990 amendments, Congress added section 301(d) to the Act authorizing the EPA to treat eligible Indian Tribes in the same manner as States (TAS) and directing the EPA to promulgate regulations specifying those provisions of the Act for which TAS is appropriate. In February of 1998, the EPA implemented this requirement by promulgating the Tribal Authority Rule (TAR) (63 FR 7254, February 12, 1998, codified at 40 CFR part 49). The EPA included relevant provisions relating to implementation plans among the provisions for which TAS is appropriate (exceptions are identified in 40 CFR 49.4).

Under the provisions of the Act and the EPA's regulations, Indian Tribes must demonstrate that they meet the eligibility criteria in section 301(d) of the Act and the TAR in order to be treated in the same manner as States. The eligibility criteria are: (1) The Indian Tribe is federally-recognized; (2) the Indian Tribe has a governing body carrying out substantial governmental duties and powers; (3) the functions the Indian Tribe is applying to carry out pertain to the management and protection of air resources within the exterior boundaries of the reservation (or other areas within the Indian Tribe's jurisdiction); and, (4) the Indian Tribe is reasonably expected to be capable of performing the functions the Indian Tribe is applying to carry out in a manner consistent with the terms and purposes of the Act and all applicable regulations.

B. What is an implementation plan?

An implementation plan is a set of programs and regulations developed by the appropriate regulatory agency to assure healthy air quality through the attainment and maintenance of the NAAQS. These plans can be developed by States, eligible Indian Tribes, or the EPA, depending on the entity with jurisdiction and the EPA's approval in a particular area. For States, such plans, once approved by the EPA, are referred to as State implementation plans or SIPs. Similarly, for eligible Indian Tribes these plans, once approved, are called Tribal implementation plans or TIPs. Occasionally, the EPA will develop an implementation plan for a specific area or source. This is referred to as a Federal implementation plan or a FIP. Once final approval becomes effective as published in theFederal Register, the provisions of an implementation plan become federally enforceable. An applicable implementation plan may be comprised of both TIPs and FIPs and/or SIPs and FIPs.

The contents of a typical implementation plan may fall into three categories: (1) Agency-adopted control measures, which consist of rules, regulations or source-specific requirements (e.g., orders, consent decrees or permits); (2) agency-submitted “non-regulatory” components (e.g., attainment plans, rate of progress plans, emission inventories, transportation control measures, statutes demonstrating legal authority, monitoring programs); and (3) additional requirements promulgated by the EPA (in the absence of a commensurate agency provision) to satisfy a mandatory Clean Air Act section 110 or part D requirement. The implementation plan is a living document which can be revised by the State or eligible Indian Tribe as necessary to address air pollution problems. Accordingly, the EPA from time to time must take action on implementation plan revisions whichmay contain new and/or revised regulations that will become part of the implementation plan.

Upon submittal to the EPA, the Agency reviews implementation plans for conformance with Federal policies and regulations. If the implementation plan conforms, the State's or eligible Indian Tribe's regulations become federally enforceable upon the EPA's approval. The codification is usually accomplished by first announcing the EPA's findings in theFederal Registerthrough a proposed rulemaking action, with an appropriate public comment period. After evaluating comments received on the proposal, a final rulemaking action will be published by the EPA, which will incorporate the implementation plan, if approved, into theCode of Federal Regulations(CFR).

C. How do Tribal implementation plans compare to State implementation plans?

The Act requires each State to develop, adopt, and submit an implementation plan for the EPA's approval into the SIP. Several sections of title I of the Act provide structured schedules and mandatory requirements for SIP preparation and contents. These are further developed in 40 CFR part 51. The SIP program reflects each State's particular needs and air quality issues. At a minimum, SIPs must meet minimum Federal standards. If a State fails to submit an approvable SIP within the schedules provided in the Act, sanctions can be imposed on the State, and if the State still does not submit an approvable implementation plan, the EPA is required to develop and enforce a FIP to implement the applicable Act requirements for that State.

Sections 110 and 301(d) of the Act and the EPA's implementing regulation at 40 CFR part 49 provide for Tribal implementation of various Act programs including TIPs. Eligible Indian Tribes can choose to implement certain Act programs by developing and adopting a TIP and submitting the TIP to the EPA for approval. TIPs: (1) Are optional; (2) may be modular; (3) have flexible submission schedules; and (4) may allow for joint Tribal and EPA management as appropriate.

1. Optional

The Act requires each State to develop, adopt and submit a proposed SIP for the EPA's approval. Unlike States, Indian Tribes are not required to adopt an implementation plan. In the TAR, the EPA recognized that not all Indian Tribes will have the need or the desire for an air pollution control program, and the EPA specifically determined that it was not appropriate to treat Indian Tribes in the same manner as States for purposes of mandatory plan submittal and implementation deadlines.See40 CFR 49.4.

2. Modular

The TAR offers eligible Indian Tribes the flexibility to include in a TIP only those implementation plan elements that address their specific air quality needs and that they have the capacity to manage. Under this modular approach, the TIP elements the eligible Indian Tribe adopts must be “reasonably severable” from the package of elements that can be included in a whole TIP. As provided in the TAR, “reasonably severable” means that the parts or elements selected for the TIP are not necessarily connected to or interdependent on parts not included in the TIP, and are consistent with applicable Act and regulatory requirements. TIPs are fundamentally different than SIPs because, while the Act requires States to prepare an implementation plan that meets all of the requirements of section 110 of the Act, an Indian Tribe may adopt TIP provisions that address only some elements of section 110.

3. Have Flexible Submission Schedules

Neither the Act nor the TAR requires Indian Tribes to develop TIPs. Therefore, unlike States, Indian Tribes are not required to meet the implementation plan submission deadlines or attainment dates specified in the Act. Indian Tribes can establish their own schedules and priorities for developing TIP elements (e.g., regulations to limit emissions of a specific air pollutant) and submitting the TIP to the EPA for approval. Indian Tribes will not face sanctions for failing to submit or for submitting incomplete or deficient implementation plans.See40 CFR 49.4.

4. Allow for Joint Tribal and EPA Management

Consistent with the Act and the TAR, eligible Indian Tribes can revise a TIP to include appropriate new programs or return programs to the EPA for Federal implementation as necessary or appropriate based on changes in Tribal need or capacity. The EPA may regulate emission sources that the Indian Tribe chooses not to include in a TIP if the EPA determines such regulation is necessary or appropriate to adequately protect air quality. This type of joint management is expected to result in a program fully protective of Tribal air resources.

III. Tribal Implementation Plan Requirements

For an Indian Tribe to receive the EPA's approval of a TIP, the Indian Tribe must, among other things: (1) Obtain a determination from the EPA that the Indian Tribe is eligible for TAS for purposes of the TIP; and (2) submit to the EPA a TIP that satisfies the requirements of the Act and relevant regulations that apply to the plan elements and functions for which the Indian Tribe seeks approval.

1. Determination of Eligibility for TAS for Purposes of the TIP

To be found eligible for TAS for the purpose of carrying out an implementation plan under the Act, an Indian Tribe must meet the requirements of section 301(d) of the Act and 40 CFR 49.6:

• The Indian Tribe must be federally recognized;

• The Indian Tribe must have a governing body carrying out substantial governmental duties and powers over a defined area;

• The functions to be exercised by the Indian Tribe must pertain to the management and protection of air resources within the exterior boundaries of the Indian Tribe's reservation or other areas within the Indian Tribe's jurisdiction;

• The Indian Tribe must be reasonably expected to be capable, in the EPA Regional Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Act and all applicable regulations.

2. Submission of an Approvable TIP

Implementation plans are governed by section 110 of the CAA. Under sections 110(o) and 301(d) of the CAA and the TAR (40 CFR 49.9(h)), any TIP submitted to the EPA shall generally be reviewed in accordance with the provisions for review of State implementation plans set forth in CAA section 110. Thus, the TIP must include not only the substantive rules by which the Indian Tribe proposes to help achieve the air quality goals of the CAA, but also provide assurances that the Indian Tribe will have adequate personnel, funding, and authority to administer the plan, as required by CAA section 110(a)(2)(E), and requirements governing conflicts of interest as required by CAA section 128.2

2Seesection 110(a)(2)(E) of the Act, which requires all implementation plans to contain the requirements described in section 128 of the Act. Tribal implementation plans must comply with section 128 as neither section 110(a)(2)(E) nor section 128 of the Act are listed in the TAR as provisions that are inapplicable to Indian Tribes seeking TIP approval under the Act.See40 CFR 49.4. The EPA explicitly contemplated the applicability of CAA section 128 in the preambleto the proposed TAR.See59 FR 43964, August 25, 1994.

Under CAA section 128, implementation plans must contain requirements that (1) any “board or body” that approves permits or enforcement orders have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to the permits or orders, and (2) conflicts of interest are disclosed. The EPA does not intend to read CAA section 128 to limit an Indian Tribe's flexibility in creating a regulatory infrastructure that ensures an adequate separation between the regulator and the regulated entity (59 FR 43964, August 25, 1994).

The following technical elements may be included in a TIP:

• A list of regulated pollutants affected by the plan;

• Locations of affected sources and the air quality designation (i.e., attainment, unclassifiable, nonattainment) of the source location;

• Projected estimates of changes in current actual emissions from affected sources;

The TAR allows Indian Tribes to develop, adopt, and submit an implementation plan for approval as a TIP in a modular fashion, so it may not be necessary that a plan meet all of the requirements identified above to be approvable.

IV. Evaluation of the SITC TIPA. What air quality goals does the SITC TIP address?

The SITC TIP for open burning provides a regulatory structure to protect air quality from the impacts of open burning within the boundaries of the Swinomish Reservation. The SITC TIP is comprised of two parts. Part I is the “Swinomish Tribal Implementation Plan for Open Burning”, describing the Tribe's open burning program, including requirements on conflicts of interest (per CAA section 128), public notification and public hearings (per 40 CFR 51.285 and 51.102) and demonstrating available resources (per 40 CFR 51.280). Part II of the TIP is the “Clean Air Act,” chapter 2 of title 19 of the Swinomish Tribal Code (STC). Part II includes regulations governing open burning practices within the boundaries of the Swinomish Reservation.

In general, the TIP establishes:

1. A tribally-operated permitting program to authorize open burning under specified parameters;

2. standards for open burning;

3. a list of prohibited materials that may not be burned;

4. the circumstances under which the Tribe may call a burn ban during periods of impaired air quality or high fire danger;

5. a permitting fee system; and

6. a system of enforcement, including authority to perform inspections and issue enforcement orders, and a process for appeals.

B. Has the SITC obtained a determination from the EPA that it is eligible for TAS for purposes of the TIP?

On February 16, 2010, the EPA determined that the SITC had demonstrated that it was eligible for TAS for the purpose of implementing a TIP to regulate open burning on the Swinomish Reservation under section 110 of the CAA. The SITC's eligibility application submitted January 6, 2009, addressed the requirements of section 301(d) of the Act and 40 CFR 49.6. The EPA found that the SITC satisfied those requirements and notified the SITC of its TAS eligibility determination to implement an open burning TIP.Seeletter dated February 16, 2010, from Michelle Pirzadeh, Acting Regional Administrator, EPA Region 10, to the Honorable M. Brian Cladoosby, Tribal Chairperson, Swinomish Indian Tribal Community, included in the docket for this action.

C. Has the SITC submitted to the EPA a TIP that is approvable as satisfying the requirements of the Act and relevant regulations?

In accordance with CAA section 110(a), the SITC submittal includes documentation that the Tribe issued a public notice soliciting comments on its proposed TIP on December 21, 2012, and held a public hearing on January 26, 2012, with no public comments received. The Swinomish Indian Senate adopted the TIP for open burning on March 6, 2012, and the ordinance that amended chapter 2 of title 19 of the STC was approved by the Superintendent of the Puget Sound Agency of the Bureau of Indian Affairs on March 9, 2012—the effective date of chapter 2 of title 19 of the STC. The SITC formally submitted the TIP to the EPA on June 28, 2012, and the EPA received supplementary submittals on September 24, 2013, November 18, 2013, and January 28, 2014.3

3The SITC made four TIP submissions which included more than one version of certain components of the TIP. The EPA is taking action on the most recent versions of these components as detailed in the docket for this action.

D. How would the SITC administer the TIP?

As noted above, CAA section 110(a)(2)(E) requires an implementation plan to provide assurances that the Indian Tribe will have adequate personnel, funding, and authority to administer the plan. Under CAA section 128, implementation plans must contain requirements governing conflicts of interest.

The SITC TIP will be administered and enforced by the air program staff within the Swinomish Office of Planning and Community Development (the Planning Department or the Department). Under the SITC TIP, the air program staff is responsible for issuing open burning permits, declaring burn bans, conducting inspections, issuing enforcement orders, and publishing public notices and conducting hearings.

The SITC TIP describes the resources necessary to implement the TIP for open burning. These include staff time, supplies for equipment maintenance, travel, training, and indirect costs. The TIP describes anticipating funding from the EPA as part of the SITC's section 105 air program grant and seeking funding from other sources as needed, including, but not limited to, additional support through the Tribal budget process. The TIP also establishes permit fees.

In accordance with CAA section 128, the SITC TIP requires any board or individual exercising approval authority over permits or enforcement orders issued pursuant to the TIP to: (1) Have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders (provided, however, that elected officials or employees of the Tribe who receive income from the Tribe for the performance of their official duties may exercise approval authority over permits or enforcement orders issued to the Tribe); and (2) shall adequately disclose any potential conflicts of interest. Any such disclosures will be in writing to the Planning Commission (a Swinomish Tribal Senate committee that provides policy and guidance) and will become a part of the record of the permit or enforcement order.

E. What requirements does the SITC TIP contain?

The SITC TIP open burning regulations apply to open burns conducted within the Reservation,except for burns conducted for tribally-recognized cultural or spiritual purposes. An open burn permit is required for any person who commences an open burn that is four or more feet in diameter or three or more feet in height. The regulations prohibit the burning of certain materials, including, but not limited to, structures, garbage, dead animals, junked motor vehicles, tires or rubber materials, plastics, tar, petroleum products, paints, paper products other than what is necessary to start a fire, lumber or timbers treated with preservatives, construction debris or demolition waste, pesticides, herbicides, fertilizers, or other chemicals, insulated wire, batteries, light bulbs, materials containing mercury, asbestos or asbestos-containing materials, pathogenic waste, hazardous waste, any material other than natural vegetation that normally emits dense smoke or noxious fumes when burned, any material from a site other than the parcel number upon which the open burn is conducted, or fireworks or associated packaging other than those permitted under STC title 15, chapter 2.

The TIP also authorizes the Planning Department to call burn bans in the case of impaired air quality or the high risk of fire. The Department shall declare a burn ban based on impaired air quality when pollutant concentrations are measured or predicted within the Reservation to: (1) Exceed 75% of the currently effective NAAQS for PM2.5or PM10; or (2) exceed any other of the currently effective NAAQS.

Notice of burn bans will be issued with signs near access roads, and on the open burning hotline. Burn bans apply to all open burning on the Reservation with the exception of burns for cooking, recreational or heating purposes, or an open burn conducted for tribally-recognized cultural or spiritual purposes. If a burn begins prior to the ban being issued and its cessation would cause greater emissions than allowing it to continue, the Planning Department may authorize the open burn to continue. The Department may also use its discretion to ban all open burning on the Reservation based on the severity of air quality conditions or risk of fire danger. This includes fires for cooking, recreational or heating purposes, with the exception of fires in homes that use woodstoves as a primary source of heat.

The TIP establishes requirements and procedures for obtaining an open burn permit on land within the exterior boundaries of the Swinomish Reservation. A complete permit application must be submitted and a permit obtained at least three working days prior to the date of the open burn. The Planning Department may issue an open burn permit if after review it is determined that the open burn will not cause adverse air quality or endanger the public. Issued permits will contain standard permit conditions and may contain additional permit conditions. These permit conditions establish parameters for open burning designed to protect air quality. There are also special permitting provisions for training fires and agricultural burning. The TIP establishes a fee system for open burning and special use permits.

The TIP includes provisions to be followed by the Tribe in enforcing the open burning TIP. The Planning Department is authorized to conduct inspections to ensure compliance with the open burning conditions. If violations are found, a permit may be revoked and/or an enforcement order may be issued requiring the responsible party to cease and abate the violating activity, and/or pay a civil penalty and/or damages. Notices of violations will cite specific details of the violation, including applicable permit conditions. The director of the Planning Department must disclose any conflicts of interest with regard to persons issued a permit or subject to an enforcement order.

The TIP also identifies a system for appeals. Any person whose permit application is denied or to whom the Department issues an enforcement order may appeal the decision to the Planning Commission, Swinomish Tribal Senate, and Swinomish Tribal Court in accordance with the appeals process described in STC 19-04.560 through 19-04.600.

The EPA is proposing to approve the provisions of title 19, chapter 2 of the STC into the Swinomish TIP as part of today's proposed action (with the exception of the operating permits, nuisance, and carbon emission fee provisions that were not included in the Tribe's submittal). We note that approval of any Tribal enforcement-related authorities (e.g., enforcement, penalties, damages, hearings, appeals) into the TIP would have no effect on the EPA's independent authorities under sections 113 and 114 of the Act. Any enforcement of the TIP's requirements brought by the EPA would proceed under the EPA's independent authorities under the Clean Air Act provisions noted above.

If the EPA issues a final approval of the TIP, the SITC TIP for open burning would replace the currently effective open burning provisions in the FIP for the Swinomish Reservation (found at 40 CFR 49.10960(g)). All other provisions of the FIP for the Swinomish Reservation will be unaffected by this action.

The EPA has the authority, under the Act, to enforce the requirements in an approved TIP. The EPA will work cooperatively with the Indian Tribe in exercising its enforcement authority. The EPA recognizes that, in certain circumstances, eligible Indian Tribes have limited criminal enforcement authority. The TAR specifically provides that such limitations on an Indian Tribe's criminal enforcement authority do not prevent a TIP from being approved. Where implementation of the TIP requires criminal enforcement authority, and to the extent an Indian Tribe is precluded from asserting such authority, the Federal government has primary criminal enforcement responsibility. A memorandum of agreement between an Indian Tribe and the EPA is an appropriate way to address circumstances in which the Indian Tribe is incapable of exercising applicable enforcement requirements as described in 40 CFR 49.7(a)(6) and 40 CFR 49.8. In 2010, the Tribe and the EPA entered into a memorandum of agreement that addresses the process by which the Tribe will provide potential investigative leads to the EPA and/or other appropriate Federal entities in an appropriate and timely manner.

V. Proposed Action

Under CAA sections 110(o), 110(k)(3) and 301(d), the EPA is proposing to approve the TIP that was submitted by the SITC on June 28, 2012, and the supplementary submittals received on September 24, 2013, November 18, 2013, and January 28, 2014, for regulating open burning within the exterior boundaries of the Swinomish Reservation. The SITC TIP includes regulations governing prohibited materials, burn bans, open burning permit requirements and fees, and provisions related to enforcement of the TIP. Although the EPA is proposing to approve the regulations discussed above, the EPA is not proposing to incorporate by reference into the CFR the enforcement-related authorities for the reasons discussed in section IV. If the EPA takes final action to approve this TIP, the SITC TIP for open burning will apply to all persons within the exterior boundaries of the Reservation and will replace the existing open burning provisions in the FIP for the Swinomish Reservation (49.10956(g) and 49.10960(g)).

VI. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve laws of an eligible Indian Tribe as meeting Federal requirements and imposes no additional requirements beyond those imposed by Tribal law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601,et seq.). Because this rule proposes to approve pre-existing requirements under Tribal law and does not impose any additional enforceable duty beyond that required by Tribal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” The EPA has concluded that this proposed rule will have Tribal implications in that it will have substantial direct effects on the SITC. However, it will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law. The EPA is proposing to approve the SITC's TIP at the request of the Tribe. Tribal law will not be preempted as the SITC incorporated the TIP into Tribal law on March 9, 2012. The Tribe has applied for, and fully supports, the proposed approval of the TIP. If it is finally approved, the TIP will become federally enforceable.

The EPA worked with Tribal air program staff early in the process of developing the TIP to allow for meaningful and timely input into its development. To administer an approved TIP, Indian Tribes must be determined eligible (40 CFR part 49) for TAS for the purpose of administering a TIP. During the TAS eligibility process, the Tribe and the EPA worked together to ensure that the appropriate information was submitted to the EPA. The SITC and the EPA also worked together throughout the process of development and Tribal adoption of the TIP.

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a TIP covering areas within the exterior boundaries of the SITC Reservation, and does not alter the relationship or the distribution of power and responsibilities between States and the Federal government established in the Clean Air Act. This proposed rule does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994). This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

The requirements of section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) do not apply to this proposed rule. In reviewing TIP submissions, the EPA's role is to approve an eligible Indian Tribe's submission, provided that it meets the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the Indian Tribe to use voluntary consensus standards (VCS), the EPA has no authority to disapprove a TIP submission for failure to use VCS. It would thus be inconsistent with applicable law for the EPA, when it reviews a TIP submission, to use VCS in place of a TIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the NTTAA do not apply.

This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,et seq.).

The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Maryland pursuant to the Clean Air Act (CAA). Whenever new or revised National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including, but not limited to regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure attainment and maintenance of the standards. These elements are referred to as infrastructure requirements. The State of Maryland has made a submittal addressing the infrastructure requirements for the 2008 8-hour ozone NAAQS.

DATES:

Written comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2014-0177 by one of the following methods:

D.Hand Delivery:At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-R03-OAR-2014-0177. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughwww.regulations.gov,your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket:All documents in the electronic docket are listed in thewww.regulations.govindex. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT:

Ruth Knapp, (215) 814-2191, or by email atknapp.ruth@epa.gov.

SUPPLEMENTARY INFORMATION:

On December 27, 2012, the Maryland Department of the Environment (MDE) submitted a revision to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS.

I. Background

On March 27, 2008, EPA promulgated a revised NAAQS for ozone based on 8-hour average concentrations. EPA revised the level of the 8-hour ozone NAAQS to 0.075 parts per million (ppm). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The content of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

In the case of the 2008 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with the 1997 8-hour ozone NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned earlier, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS.

II. Summary of SIP Revision

On December 27, 2012, MDE provided a SIP revision to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS. Their submittal addressed the following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). EPA has analyzed the identified submission and is proposing to make a determination that such submittal meets the requirements of section 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA, with the exception of the Part D, Title I nonattainment planning requirements of section 110(a)(2)(I), and the portion of the submittal relating to section 110(a)(2)(D)(i)(I) on which EPA will take separate action. A detailed summary of EPA's review and rationale for approving Maryland's submittal may be found in the Technical Support Document (TSD) for this proposed rulemaking action which is available online atwww.regulations.gov,Docket number EPA-R03-OAR-2014-0177. This rulemaking action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of CAA section 110(a)(1), and will be addressed in a separate process. This proposed rulemaking action also does not address section 110(a)(2)(D)(i)(I) of the CAA. In accordance with the decision of the U.S. Court of Appeals for the District of Columbia (D.C. Circuit Court), EPA at this time is not treating the 110(a)(2)(D)(i)(I) SIP submission from Maryland as a required SIP submission.See EME Homer City Generation, L. P.v.EPA, 696 F .3d 7(D.C. Cir. 2013),cert. granted,133 U.S. 2857 (2013). On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to review this D.C. Circuit Court decision. However, at this time the D.C. Circuit Court decision remains in place and unless it is reversed or otherwise modified by the Supreme Court, states are not required to submit 110(a)(2)(D)(i)(I) SIPs until EPA has quantified their obligations under that section. EPA will address the portion of Maryland's December 27, 2012 submittal addressing section 110(a)(2)(D)(i)(I) in a separate action.

III. EPA's Approach to Review Infrastructure SIPs

EPA is acting upon the SIP submission from MDE that addresses the infrastructure requirements of section 110(a)(1) and (2) of the CAA for the 2008 ozone NAAQS. The requirement for states to make a SIPsubmission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.1EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

1For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements.2Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.3This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

3EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.4Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.5

4See, e.g.,“Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339, January 22, 2013 (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5NAAQS,” 78 FR 4337, January 22, 2013 (EPA's final action on the infrastructure SIP for the 2006 PM2.5NAAQS).

5On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.6

6For example, implementation of the 1997 PM2.5NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the Prevention of Significant Deterioration (PSD) program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.7EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).8EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.9The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

7EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

9EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision inEME Homer City,696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g.,whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including Green House Gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes,inter alia,the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e.,already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissionsfrom sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (SSM); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186, December 31, 2002, as amended by 72 FR 32526, June 13, 2007 (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.10It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

10By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.11Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.12Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.13

12EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536, December 30, 2010. EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664, July 25, 1996 and 62 FR 34641, June 27, 1997 (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 (corrections to California SIP); and 74 FR 57051, November 3, 2009 (corrections to Arizona and Nevada SIPs).

13See, e.g.,EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A).See, e.g.,75 FR 42342 at 42344, July 21, 2010 (proposed disapproval of director's discretion provisions); 76 FR 4540, January 26, 2011 (final disapproval of such provisions).

IV. Proposed Action

EPA is proposing to approve Maryland's submittal that provides the basic program elements specified in section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) necessary to implement, maintain, and enforce the 2008 ozone NAAQS with the exception of the Part D, Title I nonattainment planning requirements of section 110(a)(2)(I), and the portion of the submittal relating to section 110(a)(2)(D)(i)(I) on which EPA will take separate action. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final rulemaking action.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS for the State of Maryland, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Environmental Protection Agency (EPA) is proposing to approve two State Implementation Plan (SIP) revisions submitted by the State of Maryland pursuant to the Clean Air Act (CAA). Whenever new or revised National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including, but not limited to regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure attainment and maintenance of the standards. These elements are referred to as infrastructure requirements. The State of Maryland has made two submittals addressing the infrastructure requirements for the 2008 lead (Pb) NAAQS.

DATES:

Written comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2013-0072 by one of the following methods:

D.Hand Delivery:At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-R03-OAR-2013-0072. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughwww.regulations.gov,your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket:All documents in the electronic docket are listed in thewww.regulations.govindex. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT:

Ruth Knapp, (215) 814-2191, or by email atknapp.ruth@epa.gov.

SUPPLEMENTARY INFORMATION:

On January 3, 2013 and August 14, 2013, the Maryland Department of the Environment (MDE) submitted revisions to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the2008 Pb NAAQS. The August 2013 revision contained additional information related to how Maryland addresses section 110(a)(2)(J) and 110(a)(2)(M).

I. Background

On October 15, 2008, EPA substantially strengthened the primary and secondary lead NAAQS (hereafter the “2008 Pb NAAQS”), revising the level of the primary (health-based) standard from 1.5 micrograms per cubic meter (μg/m3) to 0.15 μg/m3, measured as total suspended particles (TSP) and not to be exceeded with an averaging time of a rolling three month period. EPA also revised the secondary (welfare-based) standard to be identical to the primary standard, as well as the associated ambient air monitoring requirements.See40 CFR 50.16.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS or within such shorter period as EPA may prescribe. The contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affect the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(1) provides the procedural and timing requirements for SIPs and section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. More specifically, section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS.

For the 2008 Pb NAAQS, states typically have met many of the basic program elements required in section 110(a)(2) of the CAA through earlier SIP submissions in connection with previous Pb NAAQS. Nevertheless, pursuant to section 110(a)(1) of the CAA, states have to review and revise, as appropriate, their existing Pb NAAQS SIPs to ensure that the SIPs are adequate to address the 2008 Pb NAAQS. To assist states in meeting this statutory requirement, EPA issued guidance on October 14, 2011, entitled, “Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (hereafter the “2011 Lead Infrastructure Guidance”), which lists the basic elements that states should include in their SIPs for the 2008 Pb NAAQS.

II. Summary of SIP Revision

On January 3, 2013, MDE provided a SIP revision to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 Pb NAAQS. This revision addresses the following infrastructure elements, which EPA is proposing to approve: Section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (K), and (L), or portions thereof. On August 14, 2013, MDE provided a second revision which addresses the following infrastructure elements which EPA is proposing to approve: Section 110(a)(2)(J) and (M) or portions thereof. This rulemaking action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the three year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process if necessary. A detailed summary of EPA's review and rationale for approving Maryland's submittal may be found in the Technical Support Document (TSD) for this proposed rulemaking action, which is available online atwww.regulations.gov, Docket number EPA-R03-OAR-2013-0072.

III. EPA's Approach To Review Infrastructure SIPs

EPA is acting upon the SIP submissions from MDE that address the infrastructure requirements of section 110(a)(1) and (2) of the CAA for the 2008 Pb NAAQS. The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.1EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

1For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity isthat section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements.2Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.3This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

3EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.4Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.5

4See, e.g.,“Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339, January 22, 2013 (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5NAAQS,” 78 FR 4337, January 22, 2013 (EPA's final action on the infrastructure SIP for the 2006 PM2.5NAAQS).

5On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.6

6For example, implementation of the 1997 PM2.5NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the Prevention of Significant Deterioration (PSD) program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.7EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).8EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs forany new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.9The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

7EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

9EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision inEME Homer City,696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g.,whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including Green House Gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes,inter alia,the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e.,already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (SSM); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186, December 31, 2002, as amended by 72 FR 32526, June 13, 2007 (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.10It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

10By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. Asa result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.11Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.12Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.13

12EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536, December 30, 2010. EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664, July 25, 1996 and 62 FR 34641, June 27, 1997 (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 (corrections to California SIP); and 74 FR 57051, November 3, 2009 (corrections to Arizona and Nevada SIPs).

13See, e.g.,EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A).See, e.g.,75 FR 42342 at 42344, July 21, 2010 (proposed disapproval of director's discretion provisions); 76 FR 4540, January 26, 2011 (final disapproval of such provisions).

IV. Proposed Action

EPA is proposing to approve the following infrastructure elements or portions thereof of Maryland's January 3, 2013 and August 14, 2013 SIP revisions: Sections 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). Maryland's SIP revisions provide the basic program elements specified in section 110(a)(2) necessary to implement, maintain, and enforce the 2008 Pb NAAQS. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final rulemaking action.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2008 Pb NAAQS for the State of Maryland, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.List of Subjects in 40 CFR Part 52

Pursuant to its authority under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is proposing to approve a revision to the Wisconsin State Implementation Plan (SIP), submitted by the Wisconsin Department of Natural Resources (WDNR) to EPA on March 12, 2014, for parallel processing. The SIP revision modifies the definition of the term “major modification” in Wisconsin's Prevention of Significant Deterioration (PSD) and Nonattainment New SourceReview (NNSR) programs. The changes made to the definition of major modification remove an NSR exemption for fuel changes as major modifications where the source was capable of accommodating the change before January 6, 1975. Additionally, the submittal modifies Wisconsin's PSD program to identify precursors for ozone. WDNR requested these revisions to match Federal requirements. EPA is proposing approval of Wisconsin's March 12, 2014, SIP revision because the Agency has made the preliminary determination that this SIP revision is in accordance with the CAA and applicable EPA regulations regarding PSD and NNSR.

DATES:

Comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2014-0242, by one of the following methods:

5.Hand Delivery:Genevieve Damico, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions:Direct your comments to Docket ID No. EPA-R05-OAR-2014-0242. EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughwww.regulations.govyour email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of theSUPPLEMENTARY INFORMATIONsection of this document.

Docket:All documents in the docket are listed in thewww.regulations.govindex. Although listed in the index, some information is not publicly available,e.g.,CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Andrea Morgan, Environmental Engineer, at (312) 353-6058 before visiting the Region 5 office.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. ThisSUPPLEMENTARY INFORMATIONsection is arranged as follows:

I. What should I consider as I prepare my comments for EPA?II. What is the background for this proposed action?III. Wisconsin's Submittal for Parallel ProcessingIV. What is EPA's analysis of Wisconsin's proposed SIP revision?V. What action is EPA taking?VI. Statutory and Executive Order ReviewsI. What should I consider as I prepare my comments for EPA?

When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading,Federal Registerdate and page number).

2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

II. What is the background for this proposed action?

EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 8, 2005 (see70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify nitrogen oxides (NOX) as a precursor to ozone (70 FR 71612 at 71679, 71699-71700).

In a June 17, 2009, letter, EPA notified WDNR that the definition of the term “major modification” in NR 405.02 was inadequate because it failed to identify permits issued under Federal authority. Wisconsin's PSD program was approved into its SIP on June 28, 1999. Prior to that, PSD construction permits were issued under Federal authority. When NR 405.02(21)(b)5., was written the references to Federal authority were inadvertently omitted. Because the Federal citations were omitted from the rule, EPA identified that in limited situations, the state definition could allow a source to make a change to usea different fuel or raw material without undergoing major new source permit review for the change, even though the change could be prohibited under a Federal permit.

III. Wisconsin's Submittal for Parallel Processing

On March 12, 2014, WDNR submitted a draft SIP revision request to EPA to revise portions of its PSD and NNSR programs. Once finalized, approval of this SIP revision request will make the Wisconsin SIP consistent with the Federal PSD and NNSR rules. Wisconsin submitted revisions to its rules NR 400, 405, and 408 of the Wisconsin Administrative Code. The submittal requests that EPA approve the following revised rules into Wisconsin's SIP: (1) NR 400.02(123m) and (124); (2) NR 405.02(21)(b)5.a. and b. and 6; (3) NR 405.02(25i)(a); (4) NR 405.02(25i)(ag) and (ar)1-3; and, (5) NR 408.02(20)(e)5.a and b. and 6. At this time EPA is only proposing to take action on the portions that pertain to the definition of “major modification” and explicitly identify NOXas a precursor to ozone. Specifically, today's proposed rulemaking is limited to the following provisions: (1) NR 405.02(21)(b)5.a. and b. and 6; (2) NR 405.02(25i)(a); (3) NR 405.02(25i)(ar)(intro) and 1.; and, (4) NR 408.02(20)(e) 5.a and b. and 6. The remainder of WDNR's submission as it relates to the identification of precursors to particulate matter of less than 2.5 micrometers (PM2.5) and the definition of PM2.5and particulate matter of less than 10 micrometers will be addressed in a separate rulemaking.

Because this SIP revision is not yet effective at the state level, Wisconsin requested that EPA “parallel process” the SIP revision. Under this procedure, the EPA Regional Office works closely with the state while developing new or revised regulations. Generally, the state submits a copy of the proposed regulation or other revisions to EPA before concluding its rulemaking process. EPA reviews this proposed state action and prepares a proposed rulemaking action. EPA publishes this proposed rulemaking in theFederal Registerand solicits public comment in approximately the same timeframe during which the state finalizes its rulemaking process.

After Wisconsin submits the formal fully adopted SIP revision request, EPA will prepare a final rulemaking action for the SIP revision. If changes are made to the SIP revision after EPA's proposed rulemaking, such changes must be acknowledged in EPA's final rulemaking action. If the changes are significant, then EPA will repropose the action.

IV. What is EPA's analysis of Wisconsin's proposed SIP revision?

EPA has evaluated WDNR's proposed revision to the Wisconsin SIP in accordance with the Federal requirements governing state permitting programs. As discussed below, EPA is proposing to approve these revisions because they meet Federal requirements.

EPA regulations contained at 40 CFR 51.166(b)(2)(iii)(e)(1) and (2) and (f) specifically prescribe when use of an alternative fuel or change in hours of operation is not considered a physical change for purposes of defining a “major modification” under the PSD program. WDNR's revisions to the definition of “major modification” in its PSD program in NR 405.02(21)(b)5.a and b. and 6 are consistent with the Federal requirements. EPA has similar regulations for its NNSR program contained at 40 CFR 51.165(a)(1)(v)(C)(5)and(6),and WDNR has revised NR 408.02(20)(e)5.a. and b. and 6 to be consistent with these Federal regulations. Therefore, EPA finds Wisconsin's revisions to the definition of “major modification” in its PSD and NNSR program to be approvable.

WDNR's requested revision to the definition of “regulated NSR air contaminant” in 405.02(25i)(a) and (25i)(ar) and (ar)1 are consistent with the explicit identification of the precursors to ozone in the definition of “regulated NSR air contaminant”, codified at 40 CFR 51.166(b)(49)(i)(b), therefore, we find the revisions to be approvable.

V. What action is EPA taking?

EPA is proposing to approve WDNR's March 12, 2014, revisions to: Wisconsin rules NR 405.02(21)(b)5.a. and b. and 6; NR 405.02(25i)(a); NR 405.02(25i)(ar)(intro) and 1.; and, NR 408.02(20)(e)5.a and b. and 6. into the SIP. As described above, these revisions are consistent with EPA's own regulations with respect to the definitions of “major modification” and “regulated NSR air contaminant”.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Environmental Protection Agency (EPA) is proposing to approve certain elements of New York's State Implementation Plan (SIP) revision submitted to demonstrate that the State meets the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2010 National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide (NO2). Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by the EPA and is commonly referred to as an infrastructure SIP.

DATES:

Comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-R02-OAR-2013-0527, by one of the following methods:

• Hand Delivery: Richard Ruvo, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Instructions:Direct your comments to Docket ID No. EPA-R02-OAR-2013-0527. EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughwww.regulations.govyour email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in thehttp://www.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inhttp://www.regulations.govor in hard copy at the Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. EPA requests, if at all possible, that you contact the individual listed in theFOR FURTHER INFORMATION CONTACTsection to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

I. What action is EPA proposing?II. What is the background information?III. What elements are required under section 110(a)(1) and (2)?IV. What is EPA's approach to the review of infrastructure SIP submissions?V. What did New York submit?VI. How has the State addressed the elements of the section 110(a)(1) and (2) “infrastructure” provisions?VII. What action is EPA taking?VIII. Statutory and Executive Order ReviewsI. What action is EPA proposing?

EPA is proposing to approve certain elements of the State of New York Infrastructure SIP as meeting the section 110(a) infrastructure requirements of the Clean Air Act (CAA) for the 2010 NO2National Ambient Air Quality Standard (NAAQS or standard). As explained below, the State has the necessary infrastructure, resources, and general authority to implement the 2010 NO2standard.

II. What is the background information?

On February 9, 2010, EPA promulgated a new, 1-hour primary NAAQS for NO2(2010 NO2NAAQS) while retaining the annual primary NAAQS for NO2(75 FR 6474). The 2010 NO2NAAQS is based on 1-hour three year average concentrations.1The 2010 NO2NAAQS is 100 parts per billion (ppb) and the new standard supplements the existing primary annual standard of 53 ppb. The secondary NO2NAAQS remains unchanged and is the same as the primary annual average NO2NAAQS, i.e., 53 ppb.2

1The 2010 NO2NAAQS is expressed as the three year average of the 98th percentile of the annual distribution of daily maximum 1-hour average concentrations.

2The official level of the annual NO2NAAQS is 0.053 parts per million (ppm), equal to 53 ppb which is shown here for the purpose of clearer comparison to the 1-hour NO2NAAQS.

Section 110(a)(1) provides the procedural and timing requirements for State Implementation Plans (SIPs). Section 110(a)(2) lists specific elements that states must meet for SIP requirements related to a newly established or revised NAAQS. Sections 110(a)(1) and (2) of the CAA require, in part, that states submit to EPA plans to implement, maintain and enforce each of the NAAQS promulgated by EPA. By statute, SIPs meeting the requirements of section 110(a)(1) and (2) are to be submitted by states within three yearsafter promulgation of a new or revised standard. These SIPs are commonly called infrastructure SIPs. Based on the February 9, 2010 promulgation date, infrastructure SIPs for the 2010 NO2NAAQS were due on February 9, 2013.

III. What elements are required under section 110(a)(1) and (2)?

The infrastructure requirements are listed in EPA's October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5National Ambient Air Quality Standards” and September 25, 2009, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards. In addition, in a memorandum dated September 13, 2013, EPA released new guidance entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),”3This new guidance (2013 Guidance) addresses the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5NAAQS, as well as infrastructure SIPs for new or revised NAAQS promulgated in the future. The 14 elements required to be addressed are as follows: (1) Emission limits and other control measures; (2) ambient air quality monitoring/data system; (3) program for enforcement of control measures; (4) interstate transport; (5) adequate resources; (6) stationary source monitoring system; (7) emergency power; (8) future SIP revisions; (9) consultation with government officials; (10) public notification; (11) prevention of significant deterioration (PSD) and visibility protection; (12) air quality modeling/data; (13) permitting fees, and (14) consultation/participation by affected local entities.

3“Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” can be found at:http://www.epa.gov/airquality/urbanair/sipstatus/infrastructure.html.

Two elements identified in section 110(a)(2) are not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather due at the time that the nonattainment area plan requirements are due pursuant to section 172. See 77 FR 46354 (August 3, 2012); 77 FR 60308 (October 3, 2012, footnote 1). These requirements are: (1) submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address the nonattainment planning requirements related to section 110(a)(2)(C) or 110(a)(2)(I).

IV. What is EPA's approach to the review of infrastructure SIP submissions?

EPA is acting upon the SIP submission from New York State that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO2NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.4EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

4For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.5Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.6This ambiguity illustratesthat rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

6EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note,e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.7Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.8

7See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5NAAQS).

8On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.9

9For example, implementation of the 1997 PM2.5NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.10EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).11EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.12The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with theapplicable statutory provisions of section 110(a)(2), as appropriate.

10EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

12EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision inEME Homer City,696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g.,whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes,inter alia,the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e.,already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.13It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

13By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.14Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.15Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.16

16See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).

V. What did New York submit?

New York's section 110 infrastructure submittal was submitted by the New York State Department of Environmental Conservation (NYSDEC) on May 8, 2013, as supplemented on May 23, 2013, and addressed the 2010 NO2NAAQS. New York's May 2013 section 110 submittals demonstrate how the State, where applicable, has a plan in place that meets the requirements of section 110 for the 2010 NO2NAAQS. This plan references the current New York Air Quality SIP, the New York Codes of Rules and Regulations (NYCRR), the New York Environmental Conservation Law (ECL) and the New York Public Officer's Law (POL). The NYCRR, ECL and POL referenced in the submittal are publicly available. New York's SIP and air pollution control regulations that have been previously approved by EPA and incorporated into the New York SIP can be found at 40 CFR 52.1670 and are posted on the Internet at:http://www.epa.gov/region02/air/sip/ny_reg.htm.

VI. How has the State addressed the elements of the section 110(a)(1) and (2) “infrastructure” provisions?

EPA compared New York's Infrastructure SIP submittals for the 2010 NO2NAAQS to New York's Infrastructure SIP submittals for the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter (PM2.5) NAAQS. On June 20, 2013, EPA took final action [see 78 FR 37122] approving certain elements and sub-elements of New York's 1997 8-hour ozone and the 1997 and 2006 PM2.5Infrastructure SIPs. Based upon EPA's comparison, EPA has determined that the information provided in New York's 2010 NO2Infrastructure SIP is nearly identical to the information provided in New York's Infrastructure SIP submittals for the 1997 8-hour ozone and 1997 and 2006 PM2.5NAAQS. Infrastructure SIPs for different criteria pollutants can have common aspects which are identical for each NAAQS (e.g., authority to promulgate emission limitations, enforcement, air quality modeling capabilities, adequate personnel, resources and legal authority). The rationale for approving certain elements of New York's Infrastructure SIP for NO2is the same as the rationale for approving those elements of New York's 1997 8-hour ozone and 1997 and 2006 PM2.5Infrastructure SIPs. Since the rationale for approving certain elements of New York's NO2Infrastructure SIP is the same as the rationale for approving certain elements of New York's 1997 8-hour ozone and 1997 and 2006 PM2.5Infrastructure SIPs, EPA is not repeating this evaluation in today's proposal. Instead, the reader is referred to EPA's evaluation of the three SIP submittals (the 1997 8-hour ozone and 1997 and 2006 PM2.5Infrastructure SIPs) detailed in the following three documents: (1) “Technical Support Document for EPA's Proposed Rulemaking for the New York's State Implementation Plan Revision: State Implementation Plan Revision For Meeting the Infrastructure Requirements In the Clean Air Act Dated December 13, 2007, October 2, 2008 and March 15, 2010” (TSD); (2) EPA's proposed approval dated April 30, 2013 (78 FR 25236); and, (3) EPA's June 20, 2013 final rule approving certain elements of New York's Infrastructure SIPs for the 1997 8-hour ozone and the 1997 and 2006 PM2.5NAAQS (78 FR 37122). These three documents are available in the electronic docket for today's proposed action atwww.regulations.gov. We are, of course, accepting comments on that rationale as it applies to our proposed approval of New York's Infrastructure SIP for the NO2NAAQS.

As stated above, there are certain aspects of the elements of New York's Infrastructure SIP for the 2010 NO2NAAQS that are common to New York's 1997 8-hour ozone and 1997 and 2006 PM2.5Infrastructure SIPs that EPA approved on June 20, 2013 and therefore EPA is not repeating the rationale for approving the following elements of New York's Infrastructure SIP for the 2010 NO2NAAQS in today's proposal: Elements A, D(i)(II), D(ii), E, F, H, I, J, K, L, and M.

As discussed in the following sections, for those elements of New York's NO2Infrastructure SIP that differ from New York's 1997 8-hour ozone and 1997 and 2006 PM2.5Infrastructure SIPs, EPA has reviewed and evaluated the aspects of those elements, namely elements B, C, D(i)(I) and G.

Element B: Ambient air quality monitoring/data system:Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, to monitor, compile and analyze ambient air quality data, and to make these data available to EPA upon request. EPA requires that states establish a new ambient air quality monitoring and reporting requirements for NO2as follows: (1) In urban areas near major roads and other locations where maximum concentration is expected; (2) community wide monitoring in large urban areas; and (3) in locations where EPA identifies monitoring will help protect communities that are susceptible and vulnerable to NO2-related health effects. New York addressed EPA's new monitoring requirements when it submitted its Annual Monitoring Network Review Plan (Plan) of 2013 on July 18, 2013. EPA approved this Plan on September 5, 2013. EPA is thereforeproposing to determine that New York has met the requirements of section 110(a)(2)(B) of the CAA with respect to the 2010 NO2NAAQS. A copy of New York's 2013 Monitoring Plan and EPA's September 5, 2013 approval letter are in the docket for today's proposal atwww.regulations.gov.

Element C: Program for enforcement of control measures:Section 110(a)(2)(C) requires states to have a plan that includes a program providing for enforcement of all SIP measures and the regulation of the modification and construction of any stationary source, including a program to meet Prevention of Significant Deterioration (PSD) of Air Quality and minor source new source review.

New York's Infrastructure SIP for NO2references the State's PSD and Nonattainment New Source Review (NNSR) permitting requirements contained in 6 NYCRR Part 231, Part 200 and Part 201. EPA approved these rules into the SIP on November 17, 2010 (75 FR 70140). New York's minor source new source review program is regulated under Part 201.

EPA has reviewed and evaluated New York's Infrastructure SIP for the 2010 NO2NAAQS for meeting the requirements of element C. While the Infrastructure SIP does not specifically reference NO2, it refers to the State's PSD permitting requirements in Part 231 which regulates oxides of nitrogen (NOX) which includes NO2.In addition, element C of New York's Infrastructure SIP for the 2010 NO2NAAQS refers to 8-hour ozone. NOXis a precursor of ozone and PM2.5, and NO2is one of the components of NOX. Moreover, the PSD portion of Part 231 regulates the construction of proposed new or modified facilities that are required to demonstrate in their permit application that allowable emission increases from the facilities, in conjunction with all other applicable emission increases or reductions (including secondary emissions), would not, among other things, cause or significantly contribute to air pollution in violation of any national ambient air quality standard17in any air quality control region. Since NO2is a NAAQS, the PSD provisions of Part 231 are applicable to NO2. For these reasons, EPA concludes that by referencing Part 231, which is part of New York's approved SIP, New York's Infrastructure SIP addresses the PSD requirements of section 110(a)(2)(C) for NO2.

Therefore, EPA proposes to find that the State has adequate authority and regulations to ensure that SIP-approved control measures are enforced. EPA also finds that based on the approval of New York's PSD program, New York has the authority to regulate the construction of new or modified stationary sources to meet the PSD program requirements. EPA is proposing to determine that New York has met the requirements of section 110(a)(2)(C) and (J) of the CAA with respect to the 2010 NO2NAAQS. It should be noted that the PSD provisions of Part 231 address the requirements of section 110(a)(2)(J) as well as section 110(a)(2)(C).

Element D: Interstate transport:Section 110(a)(2)(D) of the Clean Air Act is divided into two subsections, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The first of these, 110(a)(2)(D)(i), in turn, contains four “prongs” the first two of which appear in 110(a)(2)(D)(i)(I) and the second two of which appear in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) prohibit any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will contribute significantly to nonattainment in any other state with respect to any primary or secondary NAAQS (prong 1), or interfere with maintenance by any other state with respect to any primary or secondary NAAQS (prong 2). The two prongs in 110(a)(2)(D)(i)(II) prohibit any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) addresses interstate and international pollution abatement, and requires SIPs to include provisions insuring compliance with sections 115 and 126 of the CAA, relating to interstate and international pollution abatement.

In this action, EPA is proposing to approve the 110(a)(2)(D) portion of the New York SIP submission and determine that the existing New York SIP contains provisions sufficient to satisfy all of the requirements of 110(a)(2)(D) for the 2010 NO2NAAQS. With respect to the requirements of 110(a)(2)(D)(i)(II), i.e., prongs 3 and 4, and 110(a)(2)(D)(ii), EPA is proposing to approve the SIP submission based on the rationale presented in a June 20, 2013Federal Registernotice approving New York's Infrastructure SIP for the 1997 8-hour ozone and 1997 and 2006 PM2.5NAAQS (78 FR 37122; June 20, 2013). As that rationale was presented in some detail in the June 20, 2013 notice, it is not repeated in today's proposal. We are, of course, accepting comments on that rationale as it applies to our proposed approval of New York's Infrastructure SIP for the NO2NAAQS.

The New York SIP contains provisions to address the requirements of 110(a)(2)(D)(i)(I), i.e. prongs 1 and 2 of 110(a)(2)(D)(i), with respect to the NO2NAAQS.18EPA reviewed New York's May 8, 2013 infrastructure SIP submittal for the 2010 NO2NAAQS and, based on that review and EPA's review of relevant air quality data, EPA is proposing to determine that New York's SIP includes adequate provisions to prohibit sources or other emission activities within the State from emitting NOXin amounts that will contribute significantly to nonattainment or interfere with maintenance by any other state with respect specifically to the NO2NAAQS. NO2is a component of NOX.

18In accordance with the decision of the U.S. Court of Appeals for the District of Columbia, EPA at this time is not treating the 110(a)(2)(D)(i)(I) portion of the SIP submission from New York (which is part of the larger May 8, 2013 SIP submission for the 2010 NO2NAAQS) as a required SIP submission.See EME Homer City Generation, L.P.v.EPA,696 F .3d 7 (D.C. Cir. 2012),cert. granted133 S.Ct. 2857 (2013). On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to review the merits of the D.C. Circuit decision inEME Homer Cityduring the Court's 2013 term. Regardless of whether a particular SIP submission is considered “required,” however, section 110(k)(2) of the CAA requires EPA to act on the submission.

The EPA approved New York SIP presently includes requirements for emissions limits on NOXincluding, but not limited to, Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) Parts 212, 217, 218, 219, 220, 224, 227-2, and 249.See40 CFR 40 CFR 52.1670(c).

—Part 212—Imposes reasonably available control technology (RACT) on major stationary sources not otherwise covered by other regulations.—Part 217—Requires enhanced inspection and maintenance of light-duty motor vehicles.—Part 218—Establishes emission standards for motor vehicles and motor vehicle engines.—Part 219—Imposes controls on various type of incinerators.—Part 220—Imposes RACT on emissions from cement kilns.—Part 224—Imposes controls on NO2emissions from nitric acid plants.—Part 227-2—Imposes RACT on utility and industrial boilers, combustion turbines, stationary internal combustion engines and other combustion installations (major facility of NOXthat contains an emission source type not regulated under the other Parts). Major facilities existing prior to June 1, 2010 must comply with new NOXRACT emission limits by July 1, 2014.—Part 249—Applies best available retrofit technology (BART) to any stationary source that has been determined to be BART-eligible and whose emissions require control for the purpose of reducing regional haze. Part 249 requires facilities to submit source- specific BART proposals to New York. This rule applies to applicable BART eligible sources including utility boilers and industrial sources such as boilers, cement plants etc.

In addition, all major stationary sources of NO2are subject to the SIP-approved requirements for prevention of significant deterioration (PSD) and nonattainment new source review with Emission Offset Provisions in 6 NYCRR Part 231 which provide preconstruction review and permitting requirements in attainment and nonattainment areas. The requirements of Part 231 help ensure that no new or modified NO2emitting source will cause or contribute to any potential exceedances of the NO2NAAQS.

On February 17, 2012 (77 FR 9532), EPA promulgated a rule that established air quality designations for all areas of the country for the 2010 NO2NAAQS based on air quality monitoring data for the period 2008-2010. Based upon this 2008-2010 air quality monitoring data, EPA determined that no area of the country is violating the 2010 NO2NAAQS. EPA reviewed 2008-2012 NO2air quality monitoring data for New York, including the Saint Regis Mohawk Tribe, as well as the states surrounding or bordering New York within 50 kilometers of New York's boarders, including Vermont, Massachusetts, Connecticut, New Jersey, and Pennsylvania. EPA selected fifty kilometers from New York for reviewing design values at monitors because 50 kilometers is the standard distance for modeling analysis in EPA's Guideline on Air Quality Models (Appendix W to 40 CFR Part 51) and EPA is acting consistent with that Guideline. The most recent design values19(DVs) that are computed using quality-assured and certified ambient air monitoring data using the Federal Reference method or equivalent data is reported by states, tribes and local agencies to EPA's Air Quality System (AQS). Data for 2008-2010, 2009-2011 and 2010-2012 for monitors in states surrounding or bordering New York within 50 kilometers of New York are in Table 1 below and show that the DVs are well below the NAAQS for NO2.The level of the 1-hour NAAQS for NO2is 100 parts per billion (ppb) and the form is the 3-year average of the annual 98th percentile of the daily 1-hour maximum. In the states surrounding and bordering New York within the 50 kilometers reviewed by EPA, there are no areas with design values for 2008-2010, 2009-2011 and 2010-2012 that exceed the 2010 NO2NAAQS. For example, the highest DV for 2008-2010 is 73 (Union, NJ), well below the 100 ppb NAAQS. See Table 1 below for DVs surrounding and bordering New York within 50 kilometers of New York.

Based on this air quality monitoring data analysis and EPA's review of NOXemission trends within New York, EPA does not expect NOXemissions in New York to increase significantly particularly in light of the New York SIP approved emission limits and New Source Review provisions.

20DVs for the Saint Regis Mohawk Tribe of New York are not shown in Table 1 since EPA determined there is no valid data. Wherever there is no data shown in Table 1, EPA has no data for those time periods.

EPA's analysis of the air quality monitoring data and emission trends also supports EPA's conclusion that NO2emissions are not increasing significantly in the states surrounding New York and do not appear likely to significantly increase as a result of emissions from New York especially with the New York SIP approved provisions for NOX. EPA therefore doesnot expect monitors identified in the table above which all have DVs well below the NO2NAAQS to have difficulty maintaining the NAAQS for NO2. EPA proposes to conclude that New York emission sources are not significantly contributing to nonattainment in another state for the NO2NAAQS and are not likely to interfere with maintenance of the NO2NAAQS in another state.

Because the 2008-2010, the 2009-2011 and also the 2010-2012 quality-assured and certified air quality monitoring data identified above for areas surrounding or bordering New York State within 50 kilometers of New York are well below the NO2NAAQS and because NOXemission trends from New York sources do not appear to be increasing, EPA proposes to find that New York's federally enforceable SIP provisions with NOXemission limits for NOXemission sources contain adequate provisions to ensure New York emission sources will not interfere with maintenance or contribute significantly to nonattainment in another state with respect to the NO2NAAQS.

Based upon EPA's review of the air quality data and the State's submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(D)(i)(I) with respect to the 2010 NO2NAAQS.

Element G: Emergency power:Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.

EPA requires that Infrastructure SIP submittals should meet the applicable contingency plan requirements of 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution Emergency Episodes”). Subpart H requires states that have air quality control regions identified as either Priority I, Priority IA or Priority II to develop emergency episode contingency plans. States are required to develop emergency episode plans for any area that has monitored and recorded annual arithmetic mean NO2levels greater than 100 µg/m3(0.06 ppm (60 ppb)).21Areas which do not meet this level are considered to be Priority III. 40 CFR 51.150(f). In accordance with the guidance, Priority III regions are not required to develop emergency episode plans which EPA interprets to mean the contingency plans otherwise required under section 51.152. 40 CFR 51.152(c).

21Section 51.150, Classification of regions for episode plans, was last amended on July 20, 1993 (58 FR 38822) and therefore does not include ambient concentration levels for establishing Priority I Regions for the 1-hour NO2NAAQS that was promulgated on February 9, 2010 (75 FR 6474).

Since 2010, air-quality monitors in New York State show that annual arithmetic mean NO2levels have been below the 100 µg/m3(0.06 ppm (60 ppb)) threshold. In addition, since 2010, ambient air quality levels in New York State have been below the 1-hour NO2NAAQS of 100 ppb. Based on certified and quality assured air quality data, New York should be classified as a Priority III region and, therefore, emergency episode plans for NO2are not required.

However, in general and for the NO2standard, the section 110(a)(2)(G) requirements are addressed by New York's ECL, Articles 3 and 19, which are implemented through 6 NYCRR Part 207, “Control Measures for Air Pollution Episodes.” Among other things, 6 NYCRR Part 207 requires persons who own a significant air contamination source to submit a proposed episode action plan to the NYSDEC Commissioner, and enable the Commissioner to designate air pollution episodes which trigger the action plans. Pursuant to Part 207.3(a), the NYSDEC Commissioner shall have on file and make available the criteria used in determining the need to designate episodes. The NYSDEC maintains an “Episode Action Plan” with guidelines and protocols/criteria to be followed in case of an air pollution emergency. The NYSDEC's Episode Action Plan has been updated to reflect the Significant Harm Levels (SHLs) that address the 1-hour NO2NAAQS proposed by EPA on July 15, 2009. Therefore, EPA proposes that New York has met the requirements of section 110(a)(2)(G) for the 2010 1-hour NO2NAAQS.

EPA is not acting on New York's submittal as it relates to nonattainment provisions, the NSR program required by part D in section 110(a)(2)(C) and the measures for attainment required by section 110(a)(2)(I), as part of the infrastructure SIPs because the State's infrastructure SIP submittal does not include nonattainment requirements and EPA will act on them when, if necessary, they are submitted.

EPA is soliciting public comments on the issues discussed in this proposal. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional Office listed in theADDRESSESsection of thisFederal Register, or by submitting comments electronically, by mail, or through hand delivery or courier following the directions in theADDRESSESsection of thisFederal Register.

VIII. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate humanhealth or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The EPA is proposing to approve a maintenance plan for the Central Puget Sound area to maintain the 8-hour ozone National Ambient Air Quality Standard (NAAQS) through 2015. This plan was submitted by the Washington Department of Ecology as a revision to its State Implementation Plan on January 10, 2008. The maintenance plan for this area meets all Clean Air Act requirements, and demonstrates that the Central Puget Sound area will remain in attainment with the 1997 and 2008 ozone NAAQS through 2015.

DATES:

Comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R10-OAR-2008-0122, by any of the following methods:

• Hand Delivery/Courier: U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, Seattle WA 98101. Attention: Keith Rose, Office of Air, Waste and Toxics, AWT-107. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Please see the direct final rule which is located in the Rules section of thisFederal Registerfor detailed instructions on how to submit comments.FOR FURTHER INFORMATION CONTACT:

For further information, please see the direct final action, of the same title, which is located in the Rules section of thisFederal Register. The EPA is simultaneously approving the State's SIP revision as a direct final rule without prior proposal because the EPA views this as a noncontroversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If the EPA receives no adverse comments, the EPA will not take further action on this proposed rule.

If the EPA receives adverse comments, the EPA will withdraw the direct final rule and it will not take effect. The EPA will address all public comments in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The Environmental Protection Agency (EPA) is proposing to revise the 2013 cellulosic biofuel standard published on August 15, 2013. This action follows from EPA having granted two petitioners' requests for reconsideration of the 2013 cellulosic biofuel standard. EPA granted reconsideration because one of the two companies that EPA expected to produce cellulosic biofuel in 2013 announced soon after EPA signed its final rule that it intended to produce substantially lower volumes of cellulosic biofuel in 2013 than it had earlier reported to EPA. Since the cellulosic biofuel standard was based on EPA's projection of cellulosic biofuel production in 2013, EPA deemed this new information to be of central relevance to the rule, warranting reconsideration. On reconsideration, EPA is directed to base the standard on the lower of “projected” production of cellulosic fuel in 2013 or the cellulosic biofuel applicable volume set forth in the statute. Since data are available to show actual production volumes for 2013, EPA's “projection” and proposal are based on actual cellulosic biofuel production in 2013. This action only affects the 2013 cellulosic biofuel standard; all other RFS standards remain unchanged. EPA is proposing a revised cellulosic biofuel standard of 0.0005% for 2013. In the “Rules and Regulations” section of thisFederal Register, we are making this same amendment as a direct final rule. If we receive no adverse comment, the direct final rule will go into effect and we will not take further action on this proposed rule.

DATES:

A request for a public hearing must be received by May 19, 2014. If a public hearing request is received, EPA will publish a document in theFederal Registerindicating the time and place for the hearing. If a public hearing is held, written comments must be received within 30 days after the date of the hearing. If no public hearing is heldthen comments must be received on or before June 2, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2012-00546, by one of the following methods:

•Hand Delivery:EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-HQ-OAR-2012-0546. EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughwww.regulations.govor email. Thewww.regulations.govWeb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughwww.regulations.govyour email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.For additional instructions on submitting comments, go to Section I.B of theSUPPLEMENTARY INFORMATIONsection of this document.

Docket:All documents in the docket are listed in thewww.regulations.gov index.Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inwww.regulations.govor in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

EPA is proposing to amend the 2013 cellulosic biofuel standard that was finalized in “Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards; Final Rule,” (August 15, 2013; 78 FR 49794). This action follows from EPA having granted, on January 23, 2014, requests for reconsideration of the 2013 cellulosic biofuel standard submitted by the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers. In granting reconsideration, EPA determined that petitioners had met the statutory criteria of section 307(d)(7)(B) of the Clean Air Act, since petitioners had identified new information of central relevance that became available after the comment period closed but within the time period specified for parties to seek judicial review. A direct final rule that would make the same changes as those proposed in this document appears in the “Rules and Regulations” section of thisFederal Register. The EPA is taking direct final action because we view this action as noncontroversial. We have explained our reasons for granting reconsideration in the preamble to the direct final rule.

If we receive no relevant adverse comment or hearing request on the direct final rule, we will not take further action on this proposed rule. If EPA receives relevant adverse comment or a hearing request, we will publish a timely withdrawal in theFederal Registerof the direct final rule. We will address all public comments in any subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule see theADDRESSESsection of this document.

The proposed changes to the regulatory text are identical to those presented in the direct final rule published in the “Rules and Regulations” section of thisFederal Register. For further information, including a detailed explanation and rationale for the proposal and the text of the proposed regulatory revisions, see the direct final rule published in the “Rules and Regulations” section of thisFederal Register.

II. Does this action apply to me?

Entities potentially affected by this proposed rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this proposed action. This table lists the types of entities that EPA is now aware could potentially be regulated by this proposed action. Other types of entities not listed in the table could also be regulated. To determine whether your activities would be regulated by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this proposed action to a particular entity, consult the person listed in the preceding section.

III. What should I consider as I prepare my comments for EPA?A. Submitting CBI

Do not submit confidential business information (CBI) to EPA throughwww.regulations.govor email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments

When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading,Federal Registerdate and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

C. Docket Copying Costs

You may be charged a reasonable fee for photocopying docket materials, as provided in 40 CFR part 2.

IV. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

There are no new information collection requirements associated with the proposed standards in this rulemaking. The proposed standards would impose no new or different reporting requirements on regulated parties. The existing information collection requests (ICR) that apply to the RFS program are sufficient to address the reporting requirements in the proposed regulations.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's rule on small entities, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule reconsiders the annual volume requirement for cellulosic biofuel for 2013 which is being reduced from the total of 6 million ethanol-equivalent gallons finalized in the 2013 RFS annual rule and published on August 15, 2013 to 810,185 ethanol-equivalent gallons. The impacts of the RFS2 program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670), and this proposed rule will not impose any additional requirements on small entities beyond those already analyzed.

D. Unfunded Mandates Reform Act

This proposed action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. This action implements mandate(s) specifically and explicitly set forth by the Congress in Clean Air Act section 211(o) without the exercise of any policy discretion by EPA. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. Thisproposed rule only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and merely proposes to revise the 2013 cellulosic biofuel standard to reflect actual production in 2013 for the RFS program.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action proposes to revise the 2013 annual cellulosic biofuel standard for the RFS program and only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed rule will be implemented at the Federal level and affects transportation fuel refiners, blenders, marketers, distributors, importers, exporters, and renewable fuel producers and importers. Tribal governments would be affected only to the extent they purchase and use regulated fuels. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks and because it implements specific standards established by Congress in statutes (section 211(o) of the Clean Air Act).

This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action simply proposes to revises the 2013 annual cellulosic standard for renewable fuel under the RFS program.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action does not relax the control measures on sources regulated by the RFS regulations and therefore will not cause emissions increases from these sources.

V. Statutory Authority

Statutory authority for this proposed action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545.

Pursuant to section 107(d)(3) of the Clean Air Act, the Environmental Protection Agency (EPA) is proposing to redesignate the Hayden area in Arizona, which encompasses portions of southern Gila and eastern Pinal counties, from “unclassifiable” to “nonattainment” for the 2008 national ambient air quality standards for lead (Pb). EPA's proposal to redesignate the Hayden area is based on recorded violations of the Pb standards at the Arizona Department of Environmental Quality's (ADEQ's) Globe Highway monitoring site, located near the towns of Hayden and Winkleman, Arizona, and additional relevant air quality information. The effect of this action would be to redesignate the Hayden area to nonattainment for the Pb standards and thereby to impose certain planning requirements on the State of Arizona to reduce Pb concentrations within this area, including, but not limited to, the requirement to submit, within 18 months of redesignation, a revision to the Arizona state implementation plan that provides for attainment of the Pb standards as expeditiously as practicable, but no later than five years after the date of redesignation to nonattainment.

DATES:

Any comments must arrive by June 2, 2014.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2014-0266, by one of the following methods:

Instructions:All comments will be included in the public docket without change and may be made available online atwww.regulations.gov,including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted throughwww.regulations.govor email.www.regulations.govis an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket:The index to the docket for this action is available electronically atwww.regulations.govand in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large format or voluminous documents), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in theFOR FURTHER INFORMATION CONTACTsection.

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, EPA Region IX, (415) 972-3964,vagenas.ginger@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of ContentsI. BackgroundII. EPA's Decision To Address Pb Violations Monitored in the Hayden Area Through RedesignationIII. State of Arizona's Recommendation and EPA's AnalysisIV. Proposed Action and Request for Public CommentV. Statutory and Executive Order ReviewsI. Background

EPA revised the primary (health-based) Pb national ambient air quality standard (NAAQS) on October 15, 2008, lowering it from the 1.5 micrograms per cubic meter (μg/m3) level set in 1978 to a level of 0.15 μg/m3. The secondary (welfare-based) standard was revised to be identical in all respects to the primary standard. See 73 FR 66964, November 12, 2008. An area violates the revised standards if any arithmetic 3-month mean (hereafter referred to as “average”) concentration measured within the preceding three years is greater than 0.15 μg/m3. EPA also expanded the Pb monitoring network by requiring new monitors to be sited near sources emitting one ton or more of Pb per year by January 1, 2010 and in certain non-source oriented locations by January 1, 2011.

Section 107(d) of the Clean Air Act (CAA or “Act”) establishes a process for making initial area designations when a NAAQS is revised. In general, states are required to submit designation recommendations to EPA within one year of promulgation of a new or revised standard and EPA is required to complete initial designations within two years of promulgation. However, if EPA has insufficient information to promulgate designations, it can extend the period for initial designations for up to one year. For the initial designations for the 2008 Pb NAAQS, data from pre-existing monitors provided sufficient information to make some designations within the two-year timeframe. Because other areas would not have monitoring data until after the newly required monitors were in place, EPA decided to promulgate initial designations for the Pb NAAQS in two separate actions. The first round of designations (promulgated November 16, 2010 (75 FR 71033, November 22, 2010)) included areas with sufficient monitoring information at the time to determine nonattainment; the second round (promulgated November 8, 2011 (76 FR 72097, November 22, 2011)) included all other areas.

On December 15, 2009, in accordance with the process set out in CAA section 107(d)(1), Arizona submitted its recommended designations for the revised standard to EPA. At that time, ambient air quality data collected by EPA Region 9's Superfund Division from a monitor sited at the Hayden Maintenance Building, located just west of the ASARCO copper concentrate and smelting facility, indicated that the Hayden area was violating the new standard.1Arizona recommended that EPA promulgate an unclassifiable/attainment designation for most of the State, but recommended that EPA delay designating the Hayden area because the Asarco Hayden copper smelter (ASARCO), the source of Pb emissions in the area, had committed to improve its control of Pb emissions. Arizona further recommended that if the Hayden area continued to violate the Pb NAAQS on or after March 2010, it should be designated nonattainment. Subsequently, ADEQ recommended that if EPA were to determine that monitored concentrations in the Hayden area were exceeding the standard, the EPA should follow the Governor's recommendation to promulgate a lead nonattainment area with boundaries identical to the Hayden sulfur dioxide nonattainment area boundaries with respect to State lands.2

1Values from July, August, and September 2008 resulted in a 3-month average design value of 0.17 μg/m3at the Hayden Maintenance Building monitor.

In 2010, in conjunction with the initial designations for the 2008 Pb NAAQS, EPA undertook a technical analysis for the Hayden, Arizona area to evaluate the available air quality data and to determine whether the boundary recommended by the State encompassed the area that did not meet, or that contributed to ambient air quality in the area that did not meet, the 2008 Pb standard, consistent with section 107(d)(1)(A). The analysis identified the monitor that was violating the newly revised standard and evaluated nearby areas for contributions to ambient lead concentrations in the area.3EPA evaluated the surrounding area based on the weight of evidence of the following factors recommended in previous EPA guidance:

3See the 2010 draft technical support document entitled “ARIZONA, Area Designations for the 2008 Lead National Ambient Air Quality Standards.”

• Air quality in potentially included versus excluded areas;

• Emissions and emissions-related data in areas potentially included versus excluded from the nonattainment area, including population data, growth rates and patterns and emissions controls;

• Meteorology (weather and transport patterns);

• Topography (surface features such as mountain ranges or other air basin boundaries);

• Jurisdictional boundaries (e.g., counties, air districts, and reservations); and

• Any other relevant information submitted to or collected by EPA.

Based on our consideration of available air quality data and the factors listed above, EPA determined that a designation of nonattainment was appropriate and that the Hayden area boundaries recommended by the State in 2009 encompassed the entire area that did not meet (or that contributed to ambient air quality in a nearby area that did not meet) the 2008 Pb NAAQS. Accordingly, in a letter dated June 14, 2010, EPA notified Arizona that we intended to designate the Hayden area nonattainment for the 2008 Pb NAAQS.4

EPA subsequently published a notice in theFederal Registerproviding an opportunity for the public to comment on our intended designations (75 FR 39254, July 8, 2010). Commenters challenged our proposal to designate the Hayden area nonattainment and asserted that the monitoring data we relied upon (i.e., the data collected at the Superfund Divison's Hayden Maintenance Building site), was not collected in accordance with applicable quality assurance and quality control (“QA/QC”) requirements. Based on our evaluation of the monitoring data issues raised in these comments, we determined that we did not have sufficient information to promulgate a nonattainment designation for the Hayden area at that time. Accordingly, we delayed our designation for the Hayden area until the final round of designations, slated for the following year.

On November 8, 2011, EPA completed its initial designations for the revised Pb standard.5Most of Arizona was designated unclassifiable/attainment for the Pb NAAQS. We designated the Hayden area, with the boundaries Arizona recommended,6as unclassifiable rather than nonattainment because there were available monitoring data recorded at ADEQ's new Globe Highway monitoring site indicating a significant likelihood that the area was violating the 2008 Pb NAAQS, but the available information was insufficient at that time to make a nonattainment designation.7In our letter to Governor Brewer notifying her of our action, EPA explained that, should we subsequently determine that the lead standards were being violated, we would initiate the process to redesignate the Hayden area to nonattainment.8

5See 76 FR 72097, November 22, 2011.

6See 40 CFR 81.303 for a legal description of the boundary of the Hayden area.

7Because of the form of the 2008 Pb NAAQS, one 3-month average ambient air concentration over 0.15 μg/m3is enough to cause a violation of the Pb NAAQS. ADEQ's Globe Highway monitor registered four violations in 2011; however, at the time of designation the data had not been quality assured and certified and therefore could not be relied upon as the basis for a nonattainment designation.

II. EPA's Decision To Address Pb Violations Monitored in the Hayden Area Through Redesignation

The CAA grants EPA the authority to change the designation of, or “redesignate,” areas in light of changes in circumstances. More specifically EPA has the authority under CAA section 107(d)(3) to redesignate areas (or portions thereof) on the basis of air quality data, planning and control considerations, or any other air quality-related considerations.

Table 1, below, presents a summary of the latest available quality-assured Pb monitoring data from the State-operated monitor (ADEQ's Globe Highway monitor). A map showing the location of the monitor is included in our Technical Support Document (EPA TSD), which is contained in the docket for this rulemaking.

As shown in Table 1, the ADEQ's Globe Highway monitor recorded three violations in 2012. An area violates the revised standards if any arithmetic 3-month average concentration is greater than 0.15 μg/m3. The NAAQS is met if an area does not measure any exceedances of the standard for three consecutive calendar years.

On June 12, 2013, under CAA section 107(d)(3)(A), EPA notified the Governor of Arizona that the designation for Hayden should be revised. EPA's June 2013 decision to initiate the redesignation process for the Hayden area stemmed from review of the quality assured, certified monitoring data that indicate that three-month rolling average values violated the Pb standards for February-April, March-May, and April-June 2012. In light of the violations of the Pb standard recorded in 2012 at ADEQ's Globe Highway monitor, EPA concluded that the SIP planning and control requirements that are triggered by redesignation of an area to nonattainment for the Pb NAAQS would be the most appropriate means to ensure that this air quality problem is remedied.

Section III of this document describes the State of Arizona's 2013 recommendation with respect to this proposed redesignation to nonattainment and summarizes EPA's review of both the State's recommendation and additional relevant information, and our conclusions based on that review. Section IV describes our proposed action and the corresponding CAA planning requirements that would thereby be triggered.

III. State of Arizona's Recommendation and EPA's AnalysisMonitoring Data

Pursuant to section 107(d)(3)(B) of the Act, on September 25, 2013, the Governor of Arizona responded to EPA's June 12, 2013 notification that the Hayden area should be redesignated to nonattainment for the Pb NAAQS. Governor Brewer recommended that the Hayden area not be redesignated to nonattainment “because there have been no lead [Pb] standard violations since June 2012, when the ASARCO Hayden Copper Smelter completed the addition of controls to reduce lead emissions.”9The Governor acknowledged that if additional violations of the 2008 Pb NAAQS occur, a designation to nonattainment for the Pb standard would be appropriate and that in such a case, the Pb nonattainment area boundaries should be identical to the Hayden sulfur dioxide (SO2) nonattainment area boundaries, as recommended in her December 15, 2009 letter.10 11

10The boundaries of the SO2nonattainment area and the Pb unclassifiable area are identical.

11The Governor explicitly excludes Indian country, which is appropriate given that the State of Arizona is not authorized to administer programs under the CAA in the affected Indian country.

In support of the Governor's recommendation, ADEQ submitted to EPA a technical support document entitled, “Relationship Between Ambient Sulfur Dioxide and Lead Concentrations”12(ADEQ 2013 TSD). The ADEQ 2013 TSD examines the relationship between ambient concentrations of SO2and Pb over time. ADEQ asserts that there is a very strong relationship between the two pollutants, but that the separation between the SO2concentrations and Pb concentrations increased after July 2012, which they attribute to a decrease in Pb emissions due to new controls. The document states that ambient SO2concentrations were approximately 263 times that of Pb during the period of January 15, 2011 to June 30, 2012. From July 1, 2012 to June 30, 2013, the average SO2/Pb ratio changed to approximately 719. ADEQ points to this “abrupt change” in the ratio of SO2to Pb concentrations that occurred around July 2012 as evidence that the Pb emissions controls installed at that time have reduced the ambient concentrations of Pb. ADEQ concludes that, “[w]hile it is believed that the installed control devices were effective in reducing the ambient Pb concentrations in Hayden, AZ, additional data would be needed to verify that the Globe Highway Pb monitor continues to attain the Pb NAAQS.”13

EPA has reviewed the Governor's recommendation and ADEQ's 2013 TSD and concurs with the statement that ADEQ's Globe Highway monitor has not measured a violation since July of 2012. However, given the form of the Pb NAAQS, in order to be considered to be attaining the standard an area must have three years of valid air quality data without any violations of the 2008 Pb NAAQS.14As shown in Table 1, the most recent certified monitoring data collected at ADEQ's Globe Highway monitor near the ASARCO facility show three violations of the 2008 Pb NAAQS in 2012. Accordingly, we also concur with ADEQ's conclusion that the data gathered thus far by the ADEQ Globe Highway monitor are not sufficient to determine that the area has attained the NAAQS.

14Data from calendar year 2013 have not yet been certified as being complete and accurate, and are therefore considered to be supplemental data for this action. This certification is due by May 1, 2014 pursuant to 40 CFR 58.15.

Other Air Quality-Related Considerations

In addition to certified data from 2012 collected at the ADEQ Globe Highway Monitor, EPA has evaluated monitoring data collected in calendar year 2013. Because these data have not yet been certified as being completely submitted and accurate, we present data from 2013 as supplemental information for this action.

As of March 31, 2014, data through December 31, 2013 from ADEQ's Globe Highway monitor (04-007-1002) are available in EPA's Air Quality System (AQS) database. According to the preliminary data from the ADEQ Globe Highway monitor, no three-month rolling averages from 2013 have violated the Pb NAAQS, although two monthly averages from 2013 (March and June) were above the 0.15 µg/m3level of the Pb NAAQS. See Table 2.

In July 2013, ASARCO installed and began collecting monitoring data from a new network of ambient monitors surrounding the facility.15Because the ASARCO data are preliminary, EPA has evaluated the use of this set of secondary data by considering trends, gradients, and the magnitude of measured concentrations relative to the standard.

15ASARCO's monitors were sited in accordance with 40 CFR 58. See Figure 8 of EPA's TSD for a map showing the locations of the ASARCO-operated monitors.

The new monitoring network includes a monitor (Globe Highway-ASARCO) located 14 meters southwest of ADEQ's Globe Highway monitor. Preliminary, uncertified data from both the ADEQ Globe Highway monitor and the Globe Highway-ASARCO monitor are available for September-November 2013. The Globe Highway-ASARCO monitor measured approximately 0.017 µg/m3higher on average than ADEQ's Globe Highway monitor. While the two monitors measured slightly different values, they trend well with one another. See Figure 9 of EPA's TSD. Given the complex terrain in the ravine where these monitors are located, winds may be affecting these monitors differently. The different values measured at the two monitors may also be a result of minor differences in approved analytical procedures that result in lower values from the ADEQ monitor.16

16In reviewing the analytical procedures employed by the laboratory performing analysis on the ADEQ filters (Pima County Regional Wastewater Reclamation Department Compliance & Regulatory Affairs Office (CRAO) Laboratory) and the laboratory performing analysis on the ASARCO filters (Inter-Mountain Laboratories (IML)), EPA found that the sample preparation step differed between the two laboratories. While both laboratories followed approved Federal Equivalent Methods (FEMs), EPA recommended that CRAO review its sample preparation method to determine if additional best practices may be appropriate. Initial analyses by CRAO indicate employing additional best practices may yield results of approximately 11% more lead per sample. The laboratory analytical procedures were otherwise found to be comparable. See Memorandum “Review of Laboratory Procedures to Address Accuracy Concerns for Inter-Laboratory Bias for the Asarco Superfund Site,” from Joe Eidelberg and Mathew Plate, to Gwen Yoshimura and John Hillenbrand, U.S. EPA Region 9. March 31, 2014.

Of the five new ASARCO Pb monitors, the three monitors sited to the west and to the southwest of the facility show higher averages than the Globe Highway-ASARCO monitor during the period of overlap. In September, the monthly averages for the Post Office, Hillcrest Avenue, and Parking Lot monitors were 1.5 to 4.5 times higher than the monthly average for the Globe Highway-ASARCO monitor. The two complete three-month averages reported to date at the Parking Lot monitor are well over the standard, at 0.40 µg/m3for August-October 2013, and 0.65 µg/m3(more than four times over the standard) for September-November 2013. The three-month average from September-November 2013 at the Hillcrest Avenue monitor was also over the standard, at 0.19 µg/m3. These elevated levels indicate that while ADEQ's Globe Highway monitor appears to be recording levels below the standard, other locations around the smelter that the public has access to are experiencing higher concentrations. See Table 2.

Given that lead is heavy and expected to fall out of the air quickly, lead concentrations would generally be highest next to the facility and near specific facility operations that produce point or fugitive source emissions. An exception to this would be if the main emission point was through a tall stack at high temperatures, resulting in the air mass remaining buoyant for a time before falling out to breathing-level heights. The data collected by the ASARCO monitors show concentrations decreasing as one moves from the monitors closest to the facility (i.e., the Parking Lot, Hillcrest Avenue, and Post Office monitors) to those farther away (i.e., the Globe Highway and Winkelman High School monitors), indicating that fugitives or other non-stack emissions might have more significant air quality impacts on the neighborhood surrounding the facility than stack emissions.17The Hillcrest Avenue and Parking Lot monitors, both to the southwest of the facility and close to materials handling activities, also trend well with one another (see Figure 10 of the EPA TSD).

17See Table 7 of the TSD.

EPA and ADEQ have discussed the challenge of siting a single, source-specific monitor that will capture the maximum ambient concentration of Pb, given the complex meteorology and topography found in the Hayden area. While the ADEQ Globe Highway site was chosen to capture the maximum concentration using the information available at the time,18this recent information gathered by ASARCO's more extensive monitoring network indicates that higher ambient concentrations of Pb exist elsewhere in the Hayden area. Given the strong trends and gradient apparent from the available preliminary data, and that preliminary data collected after the controls on anode furnaces were installed indicate two of the ASARCO monitors are measuring violations of the Pb standard (the parking lot monitor is over four times the standard), the secondary data support our decision to redesignate the area to nonattainment.

18Quality Assurance Program Plan for the Lead (Pb) Ambient Air Monitoring Network, Attachment A. Arizona Department of Environmental Quality, October 2011.

Boundary of the Hayden Area

In conjunction with the initial designations for the 2008 Pb NAAQS, states submitted recommendations to EPA regarding the status (i.e., attainment, unclassifiable, or nonattainment) and boundaries for areas within each state. CAA section 107(d)(1)(A) generally defines a nonattainment area as any area that does not meet, or that contributes to ambient air quality in a nearby area that does not meet, the national primary or secondary ambient air quality standard for the relevant pollutant. For areas with a violating monitor, the county boundary was the default boundary of the nonattainment area. States could, however, recommend an alternative as long as the proposed nonattainment area boundaries encompassed the entire area that did not meet, and any nearby area that contributed to ambient air quality in the area that did not meet, the 2008 Pb NAAQS. In general, factors such as emissions, air quality, and meteorology were particularly relevant in determining appropriate boundaries. States also were able to take into account jurisdictional considerations when establishing an area's boundaries.19

19See 76 FR 72097 at 72102.

As noted in the Background section above, in 2009 Arizona recommended that EPA defer designation of the Hayden area, and stated that if EPA were to determine monitored concentrations were exceeding the Pb NAAQS, EPA should promulgate a Pb nonattainment area with boundaries identical to the Hayden SO2nonattainment area.20In 2010, we undertook a technical analysis of the State's recommended boundary, and determined it encompassed all areas that appeared to be violating or contributing to violations of the Pb NAAQS in the Hayden area. In 2011, we designated the Hayden area, with the boundaries the Governor recommended, as unclassifiable because data indicating violations of the 2008 Pb NAAQS were preliminary at the time final designations were due under the CAA.

For this action, we have reviewed and, where appropriate, updated our2010 analysis of relevant factors related to establishing an appropriate nonattainment area boundary. A brief summary of the key factors in the Hayden Area boundary analysis is included below.

Air Quality Data

For this factor, we considered the Pb design values for air quality monitors in the Hayden area and the surrounding area based on certified 2010-2012 data. Of the five State-operated Pb monitors located throughout Arizona that collected data within this time period, only the ADEQ Globe Highway monitor, located near the ASARCO Hayden copper smelter, measured violations of the Pb NAAQS. The design values for the remaining monitors, which are located outside the Hayden area, are well below the standard.

Emissions and Emissions-Related Data

Sources of Pb emissions located in areas surrounding the violating monitor were evaluated to determine whether a nearby area is contributing to monitored violations. Because of the significant distance, and in most cases, relatively low levels of emissions, we do not believe sources outside the Hayden area boundary are causing or contributing to Pb NAAQS violations in Hayden.

Topography

This factor takes into account the physical features of the land that might have an effect on the air shed, and therefore on the distribution of Pb in the Hayden area. The ASARCO Hayden copper smelter is located in very complex terrain, which forms natural boundaries. Mountainsides limit the extent of the area exceeding the Pb standard to a relatively small area around the smelter, which is the main source of Pb emissions. For the same reason, locations outside the area do not contribute to NAAQS exceedances within it.21The topography of the area supports retention of the existing area boundary.

21Because of the constraints imposed by the terrain, meteorology does not play a significant role in determining the boundary for this area.

Based on our technical analysis and currently available information, EPA concurs with the State's recommendation that the area's existing boundary remain unchanged. For a more detailed discussion, see the TSD for this action, which is included in the docket.

Conclusion

EPA has considered the information provided by ADEQ and agrees that preliminary data suggest that the installation of pollution control equipment on the anode furnaces at the ASARCO facility might have resulted in a reduction of ambient Pb concentrations, as measured at ADEQ's Globe Highway monitor. However, because three years without a violation are required to attain the Pb standard, the ADEQ Globe Highway monitor continues to have a design value that violates the standard and we concur with ADEQ's conclusion that ongoing monitoring will be needed to determine if the improvement in air quality as measured at the Globe Highway monitor will persist. Further, the more extensive monitoring network now in place provides preliminary data that show ambient concentrations above the standard are occurring even after ASARCO installed controls in June of 2012. Therefore, based on our review of ADEQ's Globe Highway monitoring data and our analysis of additional relevant, available information, including data collected by ASARCO's ambient air quality Pb monitors, EPA concludes it is appropriate to redesignate the Hayden area to nonattainment for the 2008 Pb NAAQS. Consistent with Arizona's recommendation, we are not proposing any changes to the area's existing boundaries.

Under CAA section 107(d)(3)(C), EPA must notify the State whenever EPA intends to modify State recommendations concerning areas to be redesignated, at least 60 days prior to EPA promulgation of final redesignations. While EPA and Arizona are in agreement with respect to the boundaries of the Hayden area, the Governor recommended against redesignating the area to nonattainment unless additional violations of the Pb NAAQS were to occur. As noted above, based on our review of available air quality data, we have determined that redesignating the Hayden area to nonattainment for the Pb NAAQS is appropriate. EPA intends to notify the State of Arizona of our proposed action when this notice is signed.

IV. Proposed Action and Request for Public Comment

Pursuant to section 107(d)(3) of the Clean Air Act and based on our evaluation of air quality data, our review of the Governor's recommendation, and our consideration of additional relevant information, EPA is proposing to redesignate from “unclassifiable” to “nonattainment” the Hayden area, located in southern Gila County and eastern Pinal County, Arizona, for the 2008 Pb NAAQS. EPA's proposal to redesignate the Hayden area is based on recorded violations of the Pb standard at ADEQ's Globe Highway monitor, and on additional air quality considerations as set forth in this document and in the TSD.

Areas redesignated to nonattainment, as proposed herein, are subject to the applicable requirements of part D, title I of the Act (see section 191 of the Act). Within 18 months of the redesignation, the State is required to submit to EPA an implementation plan for the area containing, among other things: (1) Provisions to assure that reasonably available control measures (including reasonably available control technology) are implemented; (2) a demonstration, including modeling, that the plan will provide for attainment of the Pb NAAQS as expeditiously as practicable, but no later than five years after the area's designation as nonattainment; (3) provisions that result in reasonable further progress toward timely attainment by adherence to an ambitious compliance schedule; (4) contingency measures that are to be implemented if the area fails to achieve and maintain reasonable further progress or fails to attain the NAAQS by the applicable attainment date; and (5) a permit program meeting the requirements of section 173 governing the construction and operation of new and modified major stationary sources of Pb.22Any Pb nonattainment area would also be subject to EPA's general conformity regulations (40 CFR part 93, subpart B) upon the effective date of redesignation. See section 176(c) of the Act.

We will accept comments from the public on this proposal for thirty days from the date of publication of this notice, and will consider any relevant comments in taking final action on today's proposal.

V. Statutory and Executive Order ReviewsA. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA has determined that the redesignation to nonattainment proposed today, as well as the establishment of SIP submittal schedules, would result in none of the effects identified in Executive Order12866, section 3(f). Under section 107(d)(3) of the Act, redesignations to nonattainment are based upon air quality considerations. The proposed redesignation, based upon air quality data showing that the Hayden area is not attaining the Pb standard and upon other air-quality-related considerations, does not, in and of itself, impose any new requirements on any sectors of the economy. Similarly, the establishment of new SIP submittal schedules would merely establish the dates by which SIPs must be submitted, and would not adversely affect entities.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601et seq.,a redesignation to nonattainment under section 107(d)(3), and the establishment of a SIP submittal schedule for a redesignated area, do not, in and of themselves, directly impose any new requirements on small entities. SeeMid-Tex Electric Cooperative, Inc.v.FERC,773 F.2d 327 (D.C. Cir. 1985) (agency's certification need only consider the rule's impact on entities subject to the requirements of the rule). Instead, this rulemaking simply proposes to make a factual determination and to establish a schedule to require the State to submit SIP revisions, and does not propose to directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), EPA certifies that today's proposed action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.

D. Unfunded Mandates Reform Act

Under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA has concluded that this proposed rule is not likely to result in the promulgation of any Federal mandate that may result in expenditures of $100 million or more for State, local or tribal governments in the aggregate, or for the private sector, in any one year. It is questionable whether a redesignation would constitute a federal mandate in any case. The obligation for the state to revise its State Implementation Plan that arises out of a redesignation is not legally enforceable and at most is a condition for continued receipt of federal highway funds. Therefore, it does not appear that such an action creates any enforceable duty within the meaning of section 421(5)(a)(i) of UMRA (2 U.S.C. 658(5)(a)(i)), and if it does the duty would appear to fall within the exception for a condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I).

Even if a redesignation were considered a Federal mandate, the anticipated costs resulting from the mandate would not exceed $100 million to either the private sector or state, local and tribal governments. Redesignation of an area to nonattainment does not, in itself, impose any mandates or costs on the private sector, and thus, there is no private sector mandate within the meaning of section 421(7) of UMRA (2 U.S.C. 658(7)). The only cost resulting from the redesignation itself is the cost to the State of Arizona of developing, adopting, and submitting any necessary SIP revision. Because that cost will not exceed $100 million, this proposal (if it is a federal mandate at all) is not subject to the requirements of sections 202 and 205 of UMRA (2 U.S.C. 1532 and 1535). EPA has also determined that this proposal would not result in regulatory requirements that might significantly or uniquely affect small governments because only the State would take any action as result of today's rule, and thus the requirements of section 203 (2 U.S.C. 1533) do not apply.

E. Executive Order 13132, Federalism

Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to redesignate an area for Clean Air Act planning purposes and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The area proposed for redesignation does not include any tribal lands, but is adjacent to the San Carlos Apache Tribe's reservation. EPA has been communicating with and plans to continue to consult with representatives of the San Carlos Apache Tribe, as provided in Executive Order 13175. Accordingly, EPA has addressed Executive Order 13175 to the extent that it applies to this action.

G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

This proposed rule is not subject to Executive Order 13045 (“Protection of Children from Environmental Health Risks”) (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action based on health or safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. The EPA believes that the requirements of NTTAA are inapplicable to this action because they would be inconsistent with the Clean Air Act.

Today's action proposes to redesignate an area to nonattainment for an ambient air quality standard. It will not have disproportionately high and adverse effects on any communities in the area, including minority and low-income communities.

We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to reclassifyAstragalus jaegerianus(Lane Mountain milk-vetch) as a threatened species under the Endangered Species Act of 1973, as amended (Act). After review of the best available scientific and commercial information, we find that reclassification ofAstragalus jaegerianusis not warranted at this time. However, we ask the public to submit to us any new information that becomes available concerning the threats to the species or its habitat at any time.

DATES:

The finding announced in this document was made on May 2, 2014.

ADDRESSES:

This finding is available on the Internet athttp://www.regulations.govat Docket Number FWS-R8-ES-2014-0011. Supporting documentation we used in preparing this finding is included in the docket athttp://www.regulations.govand available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road Suite B, Ventura, CA 93003. Please submit any new information, materials, comments, or questions concerning this finding to the above street address.

Why we need to publish a rule.On June 4, 2012, we published in theFederal Registera 90-day finding, which determined that the petition to reclassify Lane Mountain milk-vetch from endangered to threatened contained substantial scientific or commercial information and that the petitioned action may be warranted. Section 4(b)(3)(B) of the Act (16 U.S.C. 1531et seq.) requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants, we make a finding within 12 months of the date of receipt of the petition. We must publish these 12-month findings in theFederal Register.

The basis for our action.Under the Act, we can determine that a species is an endangered species or threatened species based on whether we find that it is in danger of extinction throughout all or a significant portion of its range now (endangered) or likely to become endangered in the foreseeable future (threatened). As part of our analysis, we consider whether it is endangered or threatened because of the factors outlined in section 4(a)(1) of the Act. We consider the same factors in delisting or downlisting a species.

Finding.This document constitutes our 12-month finding that the petitioned action to reclassify Lane Mountain milk-vetch from endangered to threatened is not warranted based on the review of the best available scientific and commercial information. It further constitutes our review pursuant to section 4(c)(2) of the Act.

Previous Federal Actions

Lane Mountain milk-vetch was listed as endangered in 1998, and a critical habitat rulemaking was completed in 2005 (63 FR 53596; October 6, 1998 and 70 FR 18220; April 8, 2005). In 2011, we revised the critical habitat rulemaking by designating approximately 14,069 acres (ac) (5,693 hectares (ha)) of land in 2 units located in the Mojave Desert in San Bernardino County, California (76 FR 29108; May 19, 2011). No recovery plan has been completed for Lane Mountain milk-vetch. A notice initiating a 5-year review was published for the species in 2006 (71 FR 14538; March 22, 2006), and a 5-year review was completed in 2008 (Service 2008, pp. 1-20; 74 FR 12878; March 25, 2009).

On December 21, 2011, we received a petition dated December 19, 2011, from the Pacific Legal Foundation (PLF), requesting that we reclassify the Lane Mountain milk-vetch from endangered to threatened under the Act based on the analysis and recommendations contained in the 5-year review for Lane Mountain milk-vetch (Service 2008, pp. 1-20; PLF 2011, pp. 1-11). On June 4, 2012, we published in theFederal Registera 90-day finding on the petition to reclassify Lane Mountain milk-vetch as threatened or endangered, and determined that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted and initiated a status review of the species under sections 4(b)(3)(A) and 4(c)(2)(A) of the Act (77 FR 32922). On April 24, 2013, the Pacific Legal Foundation filed a complaint for failure to complete a 12-month finding with the District Court of the Eastern District of California (California Cattlemen's Association, et al.v.Sally Jewell, et al., No. 2:13-cv-00800-GEB-AC (E.D. Cal.)). This challenge was resolved by an August 7, 2013, Stipulated Settlement Agreement, in which the Service agreed to submit a 12-month finding on Lane Mountain milk-vetch to theFederal Registeron or before February 28, 2014. On November 27, 2013, the Court granted an extension to April 30, 2014, due to the Federal Government shutdown and furlough in October of 2013, and to allow full incorporation of new survey information. This document constitutes our 12-month finding on the petition to reclassify the Lane Mountain milk-vetch and our review pursuant to section 4(c)(2) of the Act.

Background

This finding is based on the Species Report for Lane Mountain milk-vetch (Species Report) (Service 2014, entire), a scientific analysis of available information prepared by a team of Service biologists from the Service's Ventura Fish and Wildlife Office, the Pacific Southwest Regional Office (Region 8), and the National Headquarters Office (Arlington, VA). The purpose of the Species Report is to provide the best available scientific and commercial information about the species so that we can evaluate whether or not the species warrants protection under the Act and if so at what level of protection.

In the Species Report, we compiled the best scientific and commercial data available concerning the status of Lane Mountain milk-vetch, including the past, present, and future threats to this species. The Species Report evaluates the biological status of the species and the threats affecting its continued existence. As such, the Species Report provides the scientific basis that informsour regulatory decision in this document, which involves the further application of standards within the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) and policies. The Species Report (including a references cited list) and other materials relating to this finding can be found on the Ventura Fish and Wildlife Office Web site at:http://www.fws.gov/venturaand athttp://www.regulations.govat Docket No. FWS-R8-ES-2014-0011.

The reader is directed to the Species Report for Lane Mountain milk-vetch for a more detailed discussion of the biology, taxonomy, life history, distribution, current conditions, and factors affecting Lane Mountain milk-vetch (Service 2014, entire). A summary of the information included in the Species Report is provided below. The information below references the original sources of information cited in the Species Report (Service 2014, entire).

Species Biology

Lane Mountain milk-vetch is a herbaceous perennial member of the pea family (Fabaceae) (Wojciechowski and Spellenberg 2012, pp. 729-752). It is a slender, diffuse plant, 12 to 27.5 inches (in) (30 to 70 centimeters (cm)) tall, with straggling, freely branched stems that arise from a buried root-crown, or caudex with a long tap root (Barneby 1964, p. 485). The leaves have 7 to 15 silvery linear leaflets and are light-gray or greenish in color. The flowers are cream to purple with veins of a deeper color. Fruits are pencil-shaped pods, 0.6 to 1 in (16 to 25 cm) long and hold 2 to 14 seeds (see Service 2014,Species Description).

Distribution

Lane Mountain milk-vetch is restricted in distribution to a small portion of the central Mojave Desert north of Barstow in San Bernardino County, California at elevations of 3,000-3,800 feet (ft) (900-1,200 meters (m)) (Wojciechowski and Spellenberg 2012, p. 742). Four disjunct population areas of Lane Mountain milk-vetch have been identified prior to and since listing (Goldstone, Montana-Brinkman, Paradise Valley, and the Coolgardie Mesa populations). Based on extensive surveys of the suitable habitat within the area, no other populations of Lane Mountain milk-vetch are expected to exist outside the four identified population areas (Charis 2002, pp. 45-50; Charlton 2007, pp. 29-30).

Habitat Characteristics

Lane Mountain milk-vetch occurs mostly on gentle slopes and low ridges comprised of shallow, coarse granitic substrates where the parent rock material is close to the surface or exposed (Bagley 1999, p. 3; Charis 2002, p. 40; Rundelet al.2005, p. 34). Habitats with these characteristics are patchily distributed across the range where Lane Mountain milk-vetch occurs. The vegetation community at Lane Mountain milk-vetch sites is typically a diverse mix of woody shrub species with a higher percent cover and density than adjacent vegetation communities (Priggeet al.2000, p. 10; Priggeet al.2011, p. 185). These sites tend to have a low density of creosote bush (Larrea tridentata) and a high degree of shrubs compatible with Lane Mountain milk-vetch (Hugginset al.2012b, pp. 4-5). The distribution of Lane mountain milk-vetch and the other shrubs are indirectly controlled by the soils and soil characteristics within this plant community (second order edaphic endemism) (Priggeet al.2011, p. 185; Hugginset al.2012b, p. 4).

Lane Mountain milk-vetch has a unique relationship with the shrubs within the mixed desert scrub community where it is found. This relationship is often known as a nurse-protégé interaction (Gibsonet al.1998, p. 81; Flores and Jerado 2009, p. 911; McCalley and Sparks 2009, p. 837) and appears to provide benefits to both the Lane Mountain milk-vetch and the nurse shrubs (see Service 2014,Nurse shrubs and influence on microclimate and microhabitat of Lane Mountain milk-vetch).

Information Regarding the Species at the Time of Listing to the 2008 5-Year Review

The primary threats to the known populations of Lane Mountain milk-vetch at the time of listing were habitat loss that was likely to occur from recreational off-highway vehicle (OHV) use, mining, and changes in fire frequency and associated fire suppression activities; stochastic events; small population size; and the inadequacy of regulatory mechanisms (63 FR 53604-53609; October 6, 1998). Another threat identified at the time of listing was military training activities planned at Fort Irwin (63 FR 53605, and 53613-53614; October 6, 1998).

On July 10, 2008, the 5-year review was completed for Lane Mountain milk-vetch and recommended that the species be reclassified from endangered to threatened. This recommendation was based on the discovery of additional occurrences of Lane Mountain milk-vetch since listing and partly on the future implementation of management and conservation actions identified in recently approved land management plans (Service 2008, pp. 1-20). A recovery plan for the Lane Mountain milk-vetch has not been completed, so measurable recovery criteria have not been developed for the species.

Two major changes in land ownership/land use designation occurred between listing and the 5-year review. The first occurred in 2002, when lands containing one of the four known populations of Lane Mountain milk-vetch (Montana-Brinkman population) and a majority of lands for a second population (Paradise Valley population) were transferred from the Bureau of Land Management (BLM) to the Department of Defense as part of the Fort Irwin Military Land Withdrawal Act of 2001 (Public L. 107-107, title 29, section 2901, et seq., 115 Stat. 1335). This legislation withdrew approximately 118,674 ac (48,026 ha) of land, previously owned by the BLM, from appropriation and transferred jurisdiction and interests in those lands to the Secretary of the Army for military use. On March 15, 2004, the Service completed a biological opinion on the proposed addition of training lands at Fort Irwin (Service 2004 (1-8-03-F-48), pp. 1-73). To limit the military training effects on Lane Mountain milk-vetch, the Army committed to place the Goldstone population (1,283 ac (519 ha)) and a portion of the Paradise Valley population (3,634 ac (1,471 ha)) off-limits to all military training activities. The remainder of Lane Mountain milk-vetch population lands on Fort Irwin would be subject to some level of disturbance through military training activities (approximately 6,619 ac (2,679 ha)) from complete habitat loss to moderate or low levels of disturbance. The second land ownership/land use designation occurred in 2005, with the completion of the West Mojave Plan process by the BLM, which designated two areas containing the species as Areas of Critical Environmental Concern (ACEC) on BLM land (the entire Coolgardie Mesa population and approximately 10 percent of the Paradise Valley population) (BLM (West Mojave Plan) 2005, p. 2-108).

During our 5-year review process, we became aware of additional threats to those previously identified at the time of listing. These included the effects of infrequent recruitment, predation, dust, genetic isolation, competition with nonnative species, habitat fragmentation, and the potential forenergy development. We also reconfirmed our concerns related to military training activities and upgraded our concerns related to increased OHV and mining activities and the effects of changes in the fire regime for the species. Although our review heightened awareness of additional concerns and, in some cases, highlighted the severity of the threats, we recommended reclassification for Lane Mountain milk-vetch to threatened based partly on the establishment of conservation areas by the Army and BLM and the future management of these areas by the two agencies (Service 2008, pp. 14-15).

Information Regarding the Species Since the 2008 5-Year Review

In review and development of the information regarding the threats facing Lane Mountain milk-vetch as described in the Species Report and in conducting our status review for this 12-month finding, we have raised our level of concern regarding some threats and identified additional threats facing Lane Mountain milk-vetch. We have raised our level of concern regarding the effects of increased OHV activities on those populations of Lane Mountain milk-vetch on BLM lands, private lands, or lands recently acquired by the Department of Defense outside the National Training Center at Fort Irwin. We have also identified the effects of climate change and drought on the species and its habitat as a major concern and threat to the species or its habitat.

In addition to threats information, we also received additional population status and trend data and information on recruitment and survival (see Service 2014,Demography and Population Trends). These threats and population status and trend data are discussed in detail in the Species Report (Service 2014, pp. 39-111) and are summarized below in our statutory analysis.

Statutory Analysis and Application of Section 4 of the Act

Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) set forth procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

Determining whether the status of a species has improved to the point that it can be downlisted or delisted requires consideration of whether the species is endangered or threatened because of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the “significant portion of its range” phrase refers to the range in which the species currently exists at the time of the status review. For the purposes of this analysis, we first evaluate the status of the species throughout all its range, then consider whether the species is in danger of extinction or likely to become so in any significant portion of its range.

The Act requires that the Secretary determine whether a species is endangered or threatened because of any of the five factors enumerated in 16 U.S.C. 1533(a)(1). Our discussion of the threats is contained in the Species Report (see Service 2014, Overview of Factors Affecting the Species). In the Species Report, we present detailed discussions of the current and future potential threats to the Lane Mountain milk-vetch, discussions which are summarized in this document. Here, we now consider how those threats are categorized under each of the five factors affecting the species and determine whether it is an endangered or threatened species.

Below, we summarize the information in the Species Report of the potential current and future threats to Lane Mountain milk-vetch and categorize them by each factor. The threats categorized by factor include: Military Training Activities (Factors A and E); OHV Activities (Factors A and E); Effects of Climate Change (Factors A and E); Competition with Nonnative Plants and Fire (Factors A and E); Mining Activities (Factors A and E); Predation (Factor C); Inadequacy of Existing Regulatory Mechanisms (Factor D); Dust (Factor E); Genetic Isolation (Factor E); and Small Population Size (Factor E). The full description of these threats is documented in the Species Report (see Service 2014, Overview of Factors Affecting the Species).

A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or RangeMilitary Training Activities

The same potential military training activities that affect Lane Mountain milk-vetch habitat can also affect Lane Mountain milk-vetch individual plants. While these impacts to the species fit under Factor E (Other Natural or Manmade Factors Affecting its Continued Existence), they are included here in the Factor A discussion for ease of analysis.

Three of the four populations of Lane Mountain milk-vetch occur entirely or almost entirely on Fort Irwin. Military training and operations activities (see Service 2014,Military Training and Operations Activities) planned for Fort Irwin's Western Expansion Area may result in the loss of a substantial number of Lane Mountain milk-vetch plants and areas of habitat from both direct and indirect impacts (BLMet al.2005, Chapter 4, p. 73; Army 2003, Chapter 5, pp. 22-27). More than 6,660 ac (2,695 ha) of habitat containing Lane Mountain milk-vetch plants out the 11,567 ac (4,681 ha) that occur on Fort Irwin would be directly affected by military training and operations activities (Army 2003, Chapter 5, p. 25); this represents 31.2 percent of populations and habitat for the species, and 57 percent of the populations and habitat within the Fort Irwin boundary (Service 2014,Military Training and Operations Activities). Moreover, the Army reports that, in high use areas, frequent and intense training activities could ultimately impact, and cause the loss of, up to 100 percent of the habitat and individuals of Lane Mountain milk-vetch of the Brinkman Wash-Montana Mine population (Id.). The Army has completed an Integrated Natural Resources Management Plan and consulted with the Service on future training activities (Fort Irwin INRMP 2005). As part of the Army's conservation measures for Lane Mountain milk-vetch, the Goldstone population and a portion of the Paradise Valley population are in designated conservation areas. These conservation measures have placed 20.5 percent of the known Lane Mountain milk-vetch plants and habitat into Conservation Areas that are off-limits to the direct impacts of military training andoperations activities. These areas would not be directly affected by military training and operations, but plants and their habitat could be adversely affected by indirect impacts of military activities. A third area within a portion of the Brinkman Wash-Montana Mine population would be subject to restricted use. Direct and indirect impacts include the crushing or uprooting of Lane Mountain milk-vetch plants and nurse shrubs; crushing and burying milk-vetch seeds; disturbing soils; altering surface hydrology; promoting aeolian (wind) erosion and/or deposition of sand and dust; and degrading or disrupting ecological relationships with predators, seed dispersers, pollinators, and competitors (invasive nonnative species). Cumulatively, these activities can result in long-term adverse impacts to Lane Mountain milk-vetch populations through increases in fire frequency, size, and intensity; changes in vegetation types including loss of nurse shrubs; fragmentation and reduction/loss of connectivity between populations; reduced gene exchange or genetic isolation, and reduced population persistence or greater vulnerability to random events (Army 2003, Chapter 5, p. 26).

Based on the best available information, including the discussion contained in the Species Report, we conclude that military training and operations activities are ongoing and currently threaten the habitat or range of Lane Mountain milk-vetch through destruction, modification, or curtailment.

Mining Activities

The same potential mining activities that affect Lane Mountain milk-vetch habitat can also affect Lane Mountain milk-vetch individual plants. While these impacts to the species fit under Factor E (Other Natural or Manmade Factors Affecting its Continued Existence), they are included here in the Factor A discussion for ease of analysis.

Portions of BLM lands adjacent to Fort Irwin are designated as the Coolgardie Mining District and are currently subject to ongoing mining activities. Most of the Coolgardie Mesa population and a small portion of the Paradise Valley population of Lane Mountain milk-vetch occur on BLM lands. The impacts to Lane Mountain milk-vetch (see Service 2014,Mining Activities) and its habitat from past and current mining activities include the establishment of mining camps or staging areas. The effects to Lane Mountain milk-vetch plants and habitat include habitat fragmentation, soil surface disturbance from placement and use of mining equipment, direct uprooting of Lane Mountain milk-vetch plants and nurse shrubs or burial from side casting, and soil compaction and disturbance resulting in a disruption of soil microbial activity and nutrient cycling from repeated foot and vehicle traffic in confined areas. Additional impacts from mining activities to ecological processes include altered surface hydrology, increased wind erosion of soil and dust deposition, disruption of pollination systems, and the spread of invasive nonnative plant species. These impacts contribute to changes in vegetation type; increases in fire frequency, size and intensity; fragmentation and reduction/loss of connectivity; reduced gene exchange; and reduced population persistence.

Due to historical mining activities, the Coolgardie Mesa area has been laced with exploratory mine pits and mining activities both large and small. These activities have resulted in disturbance of the soil surface and structure. Soil crusts that form on soil surfaces in southwestern deserts, including the Mojave Desert, are assemblages of symbiotic algae, cyanobacteria, bacteria, lichens, and mosses. These soil crusts are highly susceptible to degradation from the frequent and large-scale disturbance activities, and recovery of the soil's complex structure and function will likely take centuries rather than decades. Restoration of the area to suitable conditions for the Lane Mountain milk-vetch and nurse shrubs will take even longer. Because of the nature of the impacts (e.g., destruction of soil structure and disruption of soil function), it is unlikely that the Lane Mountain milk-vetch or its nurse shrubs will become established at casual use mining sites in the future. Prior to transfer of lands containing a portion of Brinkman-Montana Wash and all of the Paradise Valley population from BLM to the Department of Defense, these areas were also subject to mining activities and may still be available for mineral rights exploration and development (Service 2014,Mining Activities;Service 2013c, attachment).

Current mining activities include “casual use” mining activities conducted by individuals and mining clubs on BLM lands. Under BLM regulations (43 CFR part 3809), “casual use” mining is defined by the excavation of mining pits and soil surface disturbance that are limited to the use of non-mechanized tools and encompass an area of less than 5 ac (2 ha). In addition, the West Mojave Plan states that dry wash sluicing is considered “casual use” and a plan of operations is not required unless operators drive off existing routes, dig up perennial plants, or use mechanized earth-moving equipment. Casual use mining also cannot result in the direct destruction of perennial woody vegetation (BLMet al.2005, chapter 4, p. 278).

The Coolgardie Mesa population and the portion of the Paradise Valley population on BLM lands are classified as Areas of Critical Environmental Concern (ACECs). To reduce threats to and help manage for the Lane Mountain milk-vetch and its habitat outside Fort Irwin, the Army purchased most of the private land within the boundaries of BLM's West Paradise and Coolgardie Mesa Conservation Areas. While BLM identified specific land management prescriptions for mining activities in these areas, casual use mining is not a discretionary action and is not subject to permits or authorizations. BLM requires no permit and does not conduct direct management oversight for casual use mining activities, and as a result, there is no mechanism for monitoring and reporting the location and extent of compliance with the BLM's regulations, or monitoring the direct and indirect impacts to Lane Mountain milk-vetch and its habitat. Under casual use, the excavation of mining pits and soil surface disturbance degrade Lane Mountain milk-vetch habitat and impact Lane Mountain milk-vetch plants and seeds and nurse shrubs directly and indirectly. Other management prescriptions that would reduce the threats from mining and surface disturbance that have not yet been implemented include withdrawal of lands within the ACECs from mineral entry and acquiring private lands from willing sellers within the ACECs.

Based on the best available information, including the discussion contained in the Species Report, we conclude that mining activities are ongoing and currently threaten the habitat or range of Lane Mountain milk-vetch through destruction, modification, or curtailment.

Off-Highway Vehicle (OHV) Activities

The same potential OHV activities that affect Lane Mountain milk-vetch habitat can also affect Lane Mountain milk-vetch individual plants. While these impacts to the species fit under Factor E (Other Natural or Manmade Factors Affecting its Continued Existence), they are included here in the Factor A discussion for ease of analysis.

OHV activity is present throughout the range of Lane Mountain milk-vetch outside the National Training Center at Fort Irwin (see Service 2014,Off-highway Vehicle (OHV) Activities). This includes all of the Coolgardie Mesa population and the portion of the Paradise Valley population that occurs on BLM lands, including those areas within the ACECs. OHV activity and roads cause habitat loss, fragmentation, and degradation. In the West Mojave Plan, the BLM identified minimizing vehicle routes of travel, fencing, education, and enforcement as conservation measures to help the Lane Mountain milk-vetch and its habitat. However, activities such as fencing, signing, and closing areas have had limited success in managing access or controlling new unauthorized routes. In addition, BLM is also obligated to provide access to mining claims and mines (BLM could revisit route designations if withdrawal of lands within the ACECs from mineral entry is completed). Our review of BLM data identified an increase in OHV routes in the Coolgardie Mesa area from over 67 miles (mi) (108 kilometers (km)) in 2005 to 134 mi (216 km) in 2012. OHV activities include not only development of roads but also establishment of camping and staging areas in previously undisturbed areas. OHV use in undisturbed areas not only destroys Lane Mountain milk-vetch plants or their nurse shrubs directly, it also disturbs the soil surface leading to reduced moisture-holding capabilities and provides a means for nonnative invasive plant species, such as annual grasses (e.g.Bromussp.),Marrubium vulgare(horehound), andBrassicasp. (mustard) to invade otherwise remote, intact habitats. These impacts contribute to changes in vegetation type; increases in fire frequency, size, and intensity; fragmentation and reduction/loss of connectivity; reduced gene exchange; and reduced population persistence. With ongoing reports of increases in OHV activity and creation of new roads, this increased use would continue to expand the area of impact to Lane Mountain milk-vetch plants and habitat in the Coolgardie Mesa and West Paradise Conservation Areas.

Based on the best available information, including the discussion contained in the Species Report, we conclude that OHV use is ongoing and has increased from past levels. The impacts of OHV use currently threaten the destruction, modification, or curtailment of the habitat or range of Lane Mountain milk-vetch.

The Effects of Climate Change

The impact of climate change is affecting both Lane Mountain milk-vetch habitat (Factor A) and individual plants (Factor E). Effects of climate change on population trends is discussed under Factor E. Discussion of both of these impacts is included here in the Factor A discussion for ease of analysis.

Changes in climate can have a variety of direct and indirect impacts on species, and can exacerbate the effects of other threats. Rather than assessing the effects of “climate change” as a single threat in and of itself, we examine the potential consequences to species and their habitats that arise from changes in environmental conditions associated with various aspects of climate change. Recent climate data available for the southwestern United States show that the area is already experiencing the effects of climate change (see Service 2014,Drought, Precipitation Patterns, and Climate Change). The average daily temperatures for the 2001-2010 decade were the highest in the southwestern United States from 1901 through 2010 (Overpecket al.2012, p. 2) with temperatures almost 2.0 °Fahrenheit (°F) (1.1 °Celsius (°C)) higher than historic averages, with fewer cold snaps and more heat waves (Hoerlinget al.2012, pp. 74-92; Overpecket al.2012, pp. 4-5). Climate change models for the southwestern United States for the 21st century predict seasonal air and surface temperatures in all seasons will increase (Overpecket al.2012, p. 5), with greater warming in summer and fall than winter and spring. Droughts in parts of the southwestern United States are projected to become more frequent (Overpecket al.2012, p. 7) with a precipitation decrease westward through the Sonoran and Mojave Deserts.

Hugginset al.(2012b, p. 11) found that there is a strong positive relationship between Lane Mountain milk-vetch population changes and seasonal precipitation, and that these changes (population fluctuations) are controlled by the variation in the timing and amount of precipitation within and between years. In addition, nurse shrubs will also be impacted by prolonged drought conditions and die-offs of nurse shrubs have already been documented in the range of Lane Mountain milk-vetch (Hugginset al.2010c, p. 1). If the models for the Southwest and Mojave Desert are correct and drought periods become longer and more frequent, we would anticipate that future climatic conditions will reduce reproduction and recruitment and elevate mortality of the Lane Mountain milk-vetch populations, favor the further spread of nonnative invasive plants and increase the frequency, spatial extent, and severity of wildfires. Additional factors exacerbated by the effects of climate change would include increases in soil loss and dust, and the reduction of microbial activity and nutrient cycling.

Nurse Shrubs.Nurse shrubs are also likely to be impacted by the effects of climate change. Changes in vegetative land cover (including loss of woody vegetation) will be substantial with vegetation composition, diversity, and growth likely altered (Archer and Predick 2008, p. 25). Increases in temperature and decreases in precipitation as a result of climate change will lead to an increase in death of nurse shrub plants in some areas of the Southwest (Overpecket al.2012, p. 8). The loss of nurse shrubs will also likely increase as a result of climate change. Nurse shrubs benefit Lane Mountain milk-vetch in the form of structural support, attenuation from weather extremes, and in providing some protection from predators, and appear to be important to the survival and persistence of the species (Sharifiet al.2010, pp. 5-6, 12, 321; Priggeet al.2011, pp. 178, 181; Hugginset al.2012a, p. 35). There is a substantial decrease in survival of Lane Mountain milk-vetch plants among nurse shrubs with canopies reduced by drought (Hugginset al.2010a, pp. 120-128; Hugginset al.2010b, pp. 1-29; Hugginset al.2012c, p. 98). When canopy cover of nurse shrubs was reduced by 60 percent or more, Lane Mountain milk-vetch plants died (Hugginset al.2010a, p. 125).

Nonnative Plants and Fire.Nonnative invasive plants and the associated potential for increase in wildfires affect both habitat and range of Lane Mountain milk-vetch (Factor A) as well as individual plants (Factor E). These impacts are discussed here, under the umbrella discussion of climate change, because climate change may exacerbate their effects to habitat and to individual plants. Discussion of both of these impacts is included here in the Factor A discussion for ease of analysis.

Nonnative invasive plant species such asBromus madritensis(red brome),Bromus tectorum(cheatgrass), andSchismus arabicusandS. barbatus(Mediterranean grass) have increased in distribution and abundance in the Mojave Desert (see Service 2014,Nonnative Species Are Likely to Increase in Abundance). Although the factors relating to the invasion of nonnative plant species are independent of climate change, the effects of climate change are likely to lead to an increase in abundance and spread of nonnative species (Archer and Predick 2008, p. 26). Nonnative species can compete with desert perennials, including Lane Mountain milk-vetch and their nurseshrubs, for scarce resources (i.e., water, nutrients) (Brooks 2000, pp. 103-105; Boothet al.2003, pp. 36-48; DeFalcoet al.2007, pp. 302-305). Increases in abundance of nonnative species threatens Lane Mountain milk-vetch through competition for resources, resulting in reduced germination, recruitment, reproduction, and survival of the species.

The introduction and spread of nonnative annuals has also resulted in an increase in the frequency, spatial extent, and severity of wildfires in the range of Lane Mountain milk-vetch because of the increase in fine fuels they produce (Army 2003, Chapter 4, p. 14; Chapter 5, p. 7; Brooks and Matchett, 2006; p. 149). The invasion and spread of nonnative annual species provide fuel that carries fire across previously open interspaces in the desert landscape (Brooks 1999, pp. 16-17) and allow fires to burn larger areas than documented historically. Once established, nonnative invasive plant species can promote and accelerate the fire cycle in a self-reinforcing manner. Areas disturbed by fire are often quickly colonized by nonnative annual species that provide additional fuel for future fire events. The slow growth and episodic nature of recruitment of many native desert plant species constrains recovery from frequent fires that accompany the establishment of nonnative invasive grasses (Archer and Predick 2008, p. 26; Chambers and Pellant 2008, pp. 29-33). Fire in the range of the Lane Mountain milk-vetch would result in the loss of individual plants and the loss of nurse shrubs associated with and vital to the continued existence of the species. Habitats where Lane Mountain milk-vetch occurs would become more fragmented as a result of the more frequent fire events. Because there are currently no feasible means for controlling the spread of nonnative invasive plant species, we expect that wildfires will be an increasing threat to Lane Mountain milk-vetch populations and their habitat.

Based on the best available information, including the discussion contained in the Species Report, we conclude that the effects of climate change on the species and its habitat through a reduction in recruitment and plant survival, loss of individual plants and habitat including loss of nurse shrubs through increase in nonnative species, droughts, and fire, are currently ongoing and threaten the habitat or range of Lane Mountain milk-vetch through destruction, modification, or curtailment.

This factor was not identified at the time of listing as a threat (63 FR at 53606), nor was it considered a threat in the 5-year review (Service, 2008, p. 11). We have no information indicating that overutilization is affecting the species. We conclude that overutilization for commercial, recreational, scientific, or educational purposes is not a short-term or long-term threat to the continued existence of Lane Mountain milk-vetch.

C. Disease or Predation

At the time of listing, disease and predation were not considered threats to Lane Mountain milk-vetch (63 FR 53606-53607). The 5-year review reported several instances of predation and noted that predation of leaves, stems, seeds, and roots are now known to occur (Service 2008, pp. 11-12). Our review for this determination indicates that while some predation of Lane Mountain milk-vetch seeds, vegetative tissue, and roots is likely occurring on an ongoing but variable basis, there is no evidence that individual plants have been killed from this activity. Because Lane Mountain milk-vetch has evolved within this habitat, the species has adapted to some level of predation (Service 2014,Predation). We have not identified any diseases affecting Lane Mountain milk-vetch.

Based on the best available information, including the discussion contained in the Species Report, we conclude that disease is not a significant threat and predation is not a significant threat in and of itself but may contribute to being a threat when considered in combination with other threats to Lane Mountain milk-vetch. See “Combination of Threats” section below for additional information.

D. Regulatory Protections

Although regulatory mechanisms (Factor D) are in place that provide some protection to Lane Mountain milk-vetch and its habitat, some of these mechanisms have not been implemented to their fullest extent and as a result do not completely alleviate all of the direct threats currently acting on the species. For example, available population trend information has shown a continued population decline for all populations despite portions of the species range having been designated as ACECs regulated by BLM or managed by the Army as part of a conservation area. In addition, the existing regulatory mechanisms are not directed toward nor are they capable of limiting the effects of invasive nonnative species, altered fire regimes, or the effects of climate change on the species. As a result, we have determined that the existing regulatory mechanisms are: (1) Inadequate because they have not been fully implemented; and (2) are not adequate to alleviate the major threats to the species (see Service 2014, Summary of Analysis of Existing Regulatory Mechanisms).

For ease of discussion, the impacts to individuals from military training, off-highway vehicle (OHV) use, and mining activities associated with this factor are discussed above in Factor A. For a complete discussion of potential impacts to both habitat and individual plants from these activities, see Factor A discussion above.

Based on the best available information, including the discussion contained in the Species Report and our discussion above regarding Factor A, we conclude that the effects of military training, OHV use, and mining activities are factors affecting the continued existence of Lane Mountain milk-vetch under Factor E.

Effects of Climate Change on Demographic and Population Trends

For ease of discussion, the impacts from climate change on the species and its habitat are discussed above in Factor A (including the effects of nonnative invasive species and fire). For a complete discussion of potential impacts to both habitat and individual plants from these activities, see Factor A discussion above. Additional effects from climate change on the species and its population trends are discussed below (see Service 2014,Drought, Precipitation Patterns, and Climate Change). The results from the long-term studies on the Lane Mountain milk-vetch indicate that the overall population size has substantially decreased since 1999, despite 2 years of high precipitation in 2005 and 2011, which saw increases in seedling recruitment (Rundelet al.2005, entire; Hugginset al.2010a, entire; Hugginset al.2012b, entire). These studies determined that Lane Mountain milk-vetch does not reproduce vegetatively but depends on seeds to recruit new individuals into the population. Because of the harsh environmental conditions of the habitat, most seedlings do not survive and successfulrecruitment is dependent on the timing and amount of precipitation from year to year. This decrease appears to follow a trend in lower precipitation amounts and frequency during this period as compared to past trends (Hugginset al.2012b, entire). The number of mature plants were also monitored, and they also saw a decline in numbers (Rundelet al.2005, entire). Hugginset al.(2010a, p. 120) reported about an 88 percent reduction in population size as measured by aboveground individuals in study plots within the Goldman and Brinkman-Wash populations that have been monitored since 1999. This loss of plants, when applied to the entire range of the species, would mean the number of Lane Mountain milk-vetch plants has declined from an estimated 5,723 plants in 1999 (Army 2002, p. 1) to 686 in 2009 (Hugginset al.2010a, p. 123). Adult Lane Mountain milk-vetch plants have the ability to persist during a dry year by reducing or curtailing reproduction, limiting vegetative growth (resprouting) or remaining dormant as a taproot below ground until the next year. Despite these adaptations, population numbers have declined. If in the future dry years continue to outnumber wet years as they have since 2000, we expect the population size of the Lane Mountain milk-vetch to continue to decline.

Based on the best available information, including the discussion contained in the Species Report, we conclude that the effect of climate change is a factor affecting the continued existence of Lane Mountain milk-vetch under Factor E.

Dust

Several human activities cause mechanical disturbance to the soil and generate dust that affect all four Lane Mountain milk-vetch populations (see Service 2014,Effects of Anthropogenic Dust to the Lane Mountain Milk-vetch and Its Habitat). Past, current, and planned activities that are dust sources include military training and operations activities, mining activities, and OHV activities. Dust has been shown to increase leaf temperatures and subsequent photosynthetic rates during early spring and may require an increased amount of water for growth and successful reproduction. If this increased amount of water is not available, the Lane Mountain milk-vetch may respond by reducing plant vigor and by reducing flower and seed production or abandoning reproduction for the year.

Based on the best available information, including the discussion contained in the Species Report, we conclude that the effect of dust is a factor affecting the continued existence of Lane Mountain milk-vetch under Factor E.

Small Population Size

Currently, each of the four populations of Lane Mountain milk-vetch are considered small populations. The impact of threats on small populations is further magnified due to their inability to respond to those threats. Small populations also face an increased likelihood of stochastic (random) extinction due to changes in demography, the environment, genetics, or other factors (Gilpin and Soule´ 1986, pp. 24-34). With their limited number of individuals, little documented recruitment in 13 years, and substantial population declines, the Lane Mountain milk-vetch populations are vulnerable to extinction due to threats associated with small population size, small number of populations, or isolation between populations (see Service 2014,Small Number of Individuals and Populations).

Based on the best available information, including the discussion contained in the Species Report, we conclude that the effect of small population size is a factor affecting the continued existence of Lane Mountain milk-vetch under Factor E.

Genetic Isolation

Genetic isolation has been raised as an additional concern for the species based on genetic work done by researchers (see Service 2014,Geneticssection). Two separate genetic studies (Walker and Metcalf 2008a and 2008b) found that Lane Mountain milk-vetch populations: (1) Lacked genetic variation within and between populations; (2) most likely have a low effective population size; (3) have undergone a recent population contraction or are undergoing a population contraction; and (4) have limited gene flow between populations and that the migration of genetic material occurs only between adjacent populations. These findings indicate that the number of Lane Mountain milk-vetch individuals that contribute genes to the next generation (e.g., reproduce and have successful recruitment) is small and that the entire species is susceptible to genetic drift. Small, isolated populations, such as Lane Mountain milk-vetch, that exhibit reduced levels of genetic variability have a reduced capacity to adapt and respond to environmental changes, thereby lessening the probability of long-term persistence (Barrett and Kohn 1991, p. 4; Newman and Pilson 1997, p. 361).

Based on the best available information, including the discussion contained in the Species Report, we conclude that genetic isolation is a factor affecting the continued existence of Lane Mountain milk-vetch under Factor E.

Combination of Threats

Combinations of threats working in concert with one another have the ability to negatively impact species to a greater degree than individual threats operating alone. Multiple stressors can alter the effects of other stressors or act synergistically to affect individuals and populations. When conducting our analysis about the potential threats affecting Lane Mountain milk-vetch, we also assessed whether the species may be affected by a combination of factors.

In the Species Report (see Service 2014, Overview of Factors Affecting the Species and Combination of Factors and Synergistic Impacts), we identified multiple threats that may have interrelated impacts on the Lane Mountain milk-vetch or its habitat. Habitat modification from military training, OHV use, and mining activities can lead to soil surface disturbances, which then lead to increased susceptibility to wind and water erosion, loss of moisture-holding capacity, invasion by nonnative plants, and increased fire threat. These activities likewise affect the nurse shrubs on which Lane Mountain milk-vetch depends. Predation on the plants, roots, and seeds of the species, although not observed to directly kill plants, may increase plant stress and reduce the vigor, including reproductive output of the species. The effects of climate change also are acting to elevate impacts on the species. Under current climate change conditions and projections, we anticipate that future climatic conditions will favor the further spread of nonnative invasive plants and increase the frequency, spatial extent, and severity of wildfires. Alteration of temperature and precipitation patterns as a result of climate change will also result in decreased survivorship of Lane Mountain milk-vetch by causing physiological stress on the plants and reducing reproduction or seedling establishment. These changed climatic conditions will also impact nurse shrubs associated with the Lane Mountain milk-vetch. Therefore, we find that the combination of habitat modification activities (and the threats that result from these activities) and the effects of climate change will exacerbate the overall degree of impacts that threaten the continued survival and recovery of Lane Mountain milk-vetch.

Finding

An assessment of the need for a species' protection under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. As required by section 4(a)(1) of the Act, we conducted a review of the status of the Lane Mountain milk-vetch and assessed the five factors to evaluate whether the species is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species. We reviewed information presented in our 2008 5-year review (Service 2008, entire), the 2011 petition (PLF 2011, pp. 1-11), information available in our files and gathered through our status review in response to this petition, and other available published and unpublished information. We also consulted with species experts from scholarly institutions and land management staff with the Army and BLM who are actively managing for the conservation of the Lane Mountain milk-vetch.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the exposure causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant the threat is. If the threat is significant, it may drive, or contribute to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of endangered or threatened under the Act.

Due to the restricted range, specialized habitat requirements, and limited recruitment and dispersal of Lane Mountain milk-vetch, populations of this species are vulnerable to currently ongoing and future threats that affect individual plants, the species' nurse shrubs, and their habitat. The primary threats to Lane Mountain milk-vetch are habitat loss and disturbance from military training, OHV use, recreational mining, and the effects of climate change. In addition, Lane Mountain milk-vetch is also negatively affected by the additive and synergistic effects due to nonnative invasive plant species and resulting changes in fire frequency and intensity, dust, reduced soil microbial activity and nutrient cycling, habitat fragmentation, small population size, and genetic isolation.

Lane Mountain milk-vetch is affected by the present destruction, modification, or curtailment of its habitat or range from military training activities, OHV use and unauthorized road development, recreational mining activities, nonnative invasive plants, modified fire regime (increased wildfire), and effects of climate change (Factor A); predation (Factor C); inadequate regulatory mechanisms (Factor D); and other natural or human-made factors affecting its continued existence (specifically, military training activities, OHV use, mining, the effects of climate change, nonnative invasive plants and fire, dust, genetic isolation, and small population size) (Factor E). Of these threats we consider military training, OHV activities, mining activities, and climate change to be the greatest threats both to the species and its habitat. We also considered the additive and synergistic effects of all the ongoing threats in combination and conclude that they are a significant concern to the species' current survival and existence and have factored them into our analysis.

In the 2008 5-year review, we recommended reclassification of Lane Mountain milk-vetch from endangered to threatened. However, since that time, we have received substantial new information about the level of threats impacting the species or its habitat and its population status and trends. The 2008 5-year review recognized the majority of threats that continue to currently affect Lane Mountain milk-vetch, but recommended reclassification because of anticipated future implementation of management and conservation measures. We anticipated the prescribed management actions would be fully implemented and significantly abate threats to Lane Mountain milk-vetch However, management and conservation measures prescribed for the species on BLM lands have not been fully implemented as expected or have not had the anticipated effect. For example, in the 2008 5-year review we anticipated BLM's actions would result in a decrease in OHV use, but our analysis indicates OHV use has actually increased. Other actions, such as minerals withdrawal of the ACECs on BLM lands, may take years to fully implement and we cannot predict when or to what extent future management will be implemented. Currently, we do not expect them to be fully implemented in the near future due to management priorities and funding. Thus, impacts to the Lane Mountain milk-vetch from recreational mining and OHV use have not been substantially abated and are ongoing. While the Army has designated some portions of Lane Mountain as conservation areas, portions of two populations would be directly impacted by military training and operations, and all three populations on DOD lands would be indirectly affected. Additionally, new information available since the 2008 5-year review on population trends has shown a significant decline in the estimated population size of the species at all populations despite management and conservation measures taken thus far; new information also demonstrates an increase in OHV use and increased impacts from the effects of climate change. Even if fully implemented, management and conservation measures prescribed for the species do not address some of the most substantial threats to Lane Mountain milk-vetch and its habitat, especially the effects of climate change and small population size. All populations are subject to threats from regional drought and climate change, spread of nonnative species, genetic isolation, and small population size. Based on the analysis above and as fully documented in the Species Report, we conclude that the Lane Mountain milk-vetch is in danger of extinction throughout all of its range.

Significant Portion of Range Determination

Section 3 of the Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” By all indications, Lane Mountain milk-vetchoccurs only in limited numbers within a restricted range and faces considerable and immediate threats to all its populations, which place it at risk of extinction. Aspects of the species' natural history may also contribute to and exacerbate threats and increase its vulnerability to extinction. Since immediate and ongoing significant threats to the Lane Mountain milk-vetch extend throughout its entire range, we have determined that the species is currently in danger of extinction throughout all of its range. Because threats extend throughout the entire range and are not restricted to any particular significant portion of that range, it is unnecessary to determine if Lane Mountain milk-vetch is in danger of extinction throughout a significant portion of its range. Accordingly, our assessment and determination applies to the species throughout its entire range, and we did not further evaluate a significant portion of the species' range.

Therefore, on the basis of the best available scientific and commercial information, we find that Lane Mountain milk-vetch continues to meet the definition of an endangered species under the Act. We further find that a threatened species status is not appropriate for Lane Mountain milk-vetch because of the severity and immediacy of the threats, the restricted range of the species, and its small population size. Consequently, we are not reclassifying Lane Mountain milk-vetch. We will maintain its status as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

We request that you submit any new information concerning the status of, or threats to, Lane Mountain milk-vetch to our Ventura Fish and Wildlife Office (seeADDRESSESsection) whenever it becomes available. New information will help us monitor this species and encourage its conservation.

References Cited

A complete list of references cited in this finding is available on the Internet athttp://www.regulations.govand upon request from the Ventura Fish and Wildlife Office (seeFOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this finding are the staff members of the Ventura Fish and Wildlife Office and Pacific Southwest Regional Office (seeFOR FURTHER INFORMATION CONTACT).

Authority

The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.).

In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval for Emergency Epidemiologic Investigations, an information collection to support the National Animal Health Monitoring System.

DATES:

We will consider all comments that we receive on or before July 1, 2014.

Supporting documents and any comments we receive on this docket may be viewed athttp://www.regulations.gov/#!docketDetail;D=APHIS-2014-0024or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

Abstract:Under the Animal Health Protection Act (7 U.S.C. 8301et seq.), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture is authorized, among other things, to protect the health of U.S. livestock and poultry populations by preventing the introduction and interstate spread of serious diseases and pests of livestock and by eradicating such diseases from the United States when feasible. In connection with this mission, APHIS operates the National Animal Health Monitoring System (NAHMS), which collects nationally representative, statistically valid, and scientifically sound data on the prevalence and economic importance of livestock diseases and associated risk factors.

APHIS NAHMS officials are often asked by State and local animal health officials to carry out epidemiological investigations as diseases impact animal health populations. Emergency Epidemiological Investigations will be used to collect information on:

• Outbreaks of animal diseases with unknown etiology and transmission, that are highly contagious, and that have high case fatality.

• Outbreaks of known animal diseases that are highly contagious, virulent, and have unknown source of infection or mode of transmission.

• Outbreaks of emerging, zoonotic, or foreign animal diseases within the United States.

• Outbreaks in which a delay in data collection could result in the loss of epidemiologic information essential to assist laboratory investigations and/or disease control efforts.

These investigations will normally consist of an on-farm questionnaire administered by APHIS-designated data collectors. The information collected through Emergency Epidemiologic Investigations will be analyzed and used to:

• Identify the scope of the problem.

• Define and describe the affected population and susceptible population.

• Predict or detect trends in disease emergence and movement.

• Understand the risk factors for disease.

• Estimate the cost of disease control and develop intervention options.

• Make recommendations for disease control.

• Provide parameters for animal disease spread models.

• Provide lessons learned and guidance on the best ways to avoid future outbreaks based on thorough analysis of data from current outbreak(s).

We are asking the Office of Management and Budget (OMB) to approve our use of this information collection activity for an additional 3 years.

The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:

(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, such as electronic submission of responses.

Estimate of burden:The public reporting burden for this collection of information is estimated to average 0.725 hours per response.

Respondents:Livestock owners and State and local animal health officials.

Estimated annual number of respondents:4,000.

Estimated annual number of responses per respondent:1.

Estimated annual number of responses:3,999.

Estimated total annual burden on respondents:2,901 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Done in Washington, DC, this 28th day of April 2014.Kevin Shea,Administrator, Animal and Plant Health Inspection Service.[FR Doc. 2014-10028 Filed 5-1-14; 8:45 am]BILLING CODE 3410-34-PDEPARTMENT OF AGRICULTUREAnimal and Plant Health Inspection Service[Docket No. APHIS-2014-0020]Notice of Request for Extension of Approval of an Information Collection; Importation of Fruits and VegetablesAGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Extension of approval of an information collection; comment request.

SUMMARY:

In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the regulations for the importation of certain fruits and vegetables into the United States.

DATES:

We will consider all comments that we receive on or before July 1, 2014.

Supporting documents and any comments we receive on this docket may be viewed athttp://www.regulations.gov/#!docketDetail;D=APHIS-2014-0020or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

Abstract:The Plant Protection Act (PPA, 7 U.S.C. 7701et seq.) authorizes the Secretary of Agriculture to restrict the importation, entry, or interstate movement of plants, plant products, and other articles to prevent the introduction of plant pests into the United States or their dissemination within the United States. As authorized by the PPA, the Animal and Plant Health Inspection Service (APHIS) regulates the importation of certain fruits and vegetables in accordance with the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-66).

Section 319.56-25 provides the requirements for the importation of papayas from certain regions of Brazil, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama into the continental United States, Alaska, Puerto Rico, and the U.S. Virgin Islands. The importation of these papayas requires the use of certain information collection activities, including phytosanitary certificates, maintaining fruit fly monitoring records, and labeling of boxes.

We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.

The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:

(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.

Estimate of burden:The public reporting burden for this collection of information is estimated to average 0.222 hours per response.

Respondents:Importers and exporters of fruits and vegetables and national plant protection organizations of exporting countries.

Estimated annual number of respondents:135.

Estimated annual number of responses per respondent:6.659.

Estimated annual number of responses:899.

Estimated total annual burden on respondents:200 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Done in Washington, DC, this 28th day of April 2014.Kevin Shea,Administrator, Animal and Plant Health Inspection Service.[FR Doc. 2014-10026 Filed 5-1-14; 8:45 am]BILLING CODE 3410-34-PDEPARTMENT OF AGRICULTUREAnimal and Plant Health Inspection Service[Docket No. APHIS-2014-0004]Field Release ofAphelinus rhamnifor the Biological Control of the Soybean Aphid in the Continental United States; Availability of an Environmental AssessmentAGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Notice of availability and request for comments.

SUMMARY:

We are advising the public that a draft environmental assessment has been prepared by the Animal and Plant Health Inspection Service relative to the proposed release ofAphelinus rhamnifor the biological control of the soybean aphid,Aphis glycines,in the continental United States. We are making this environmental assessment available to the public for review and comment.

DATES:

We will consider all comments that we receive on or before June 2, 2014.

Supporting documents and any comments we receive on this docket may be viewed athttp://www.regulations.gov/#!docketDetail;D=APHIS-2014-0004or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 7997039 before coming.

The soybean aphid,Aphis glycines,which is native to Asia, was found in North America in 2000 and has since become a major pest. It infested 42 million acres in North America in 2003, resulting in decreased soybean yields and greatly increased control costs. The soybean aphid has invaded most soybean production regions in North America. By 2009, soybean aphid was present in 30 States and 3 Canadian Provinces.

The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the field release of a parasitic wasp,Aphelinus rhamni,to reduce the severity of soybean damage from infestations of soybean aphid in the United States.

APHIS' review and analysis of the potential environmental impacts associated with this proposed field release are documented in detail in an environmental assessment entitled “Field Release ofAphelinus rhamni(Hymenoptera: Aphelinidae) for the Biological Control of the Soybean Aphid,Aphis glycines(Hemiptera: Aphididae), in the Continental United States” (August 2013). We are making this environmental assessment available to the public for review and comment. We will consider all comments that we receive on or before the date listed under the headingDATESat the beginning of this notice.

The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room (seeADDRESSESabove for a link to Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the environmental assessment by calling or writing to the person listed underFOR FURTHER INFORMATION CONTACT. Please refer to the title of the environmental assessment when requesting copies.

Done in Washington, DC, this 28th day of April 2014.Kevin Shea,Administrator, Animal and Plant Health Inspection Service.[FR Doc. 2014-10038 Filed 5-1-14; 8:45 am]BILLING CODE 3410-34-PDEPARTMENT OF AGRICULTUREAnimal and Plant Health Inspection Service[Docket No. APHIS-2014-0014]Notice of Availability of a Pest Risk Analysis for the Interstate Movement ofAlliumspp. Leaves From Hawaii Into the Continental United StatesAGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Notice.

SUMMARY:

We are advising the public that we have prepared a pest risk assessment and risk management document regarding the risks associated with the interstate movement ofAlliumspp. leaves from Hawaii into the continental United States. Based on these documents, we have determined that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the movement ofAlliumspp. leaves from Hawaii. We are making these documents available to the public for review and comment.

DATES:

We will consider all comments that we receive on or before July 1, 2014.

Supporting documents and any comments we receive on this docket may be viewed athttp://www.regulations.gov/#!docketDetail;D=APHIS-2014-0014or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

Under the regulations in “Subpart—Regulated Articles From Hawaii and the Territories” (7 CFR 318.13-1 through 318.13-26, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the interstate movement of fruits and vegetables from Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands to the continental United States to prevent the spread of plant pests and noxious weeds that occur in Hawaii and the territories.

Section 318.13-4 contains a performance-based process for approving the interstate movement of certain fruits and vegetables from Hawaii and the U.S. territories that, based on the findings of a pest risk analysis, can be safely moved subject toone or more of the six phytosanitary measures listed in § 318.13-4(b). These measures are:

• The fruits and vegetables are inspected in the State of origin or in the first State of arrival.

• The fruits and vegetables originated from a pest-free area in the State of origin and the grower from which the fruit or vegetable originated has entered into a compliance agreement with the Administrator.

• The fruits and vegetables are treated in accordance with 7 CFR part 305 and the treatment is certified by an inspector.

• The fruits and vegetables are inspected and certified in the State of origin by an inspector and have been found free of one or more specific quarantine pests identified by risk analysis as likely to follow the pathway.

• The fruits and vegetables are moved as commercial consignments only.

• The fruits and vegetables may be distributed only within a defined area and the boxes or containers in which the fruit or vegetables are distributed must be marked to indicate the applicable distribution restrictions.

APHIS received a request from the Hawaii Department of Agriculture to allow the interstate movement ofAlliumspp. leaves to the continental United States. Hawaii has indicated a specific interest in production and shipment of French chives (Allium schoenoprasumL.).Alliumspp. leaves are currently prohibited from interstate movement from Hawaii to the continental United States.

We have prepared a pest risk assessment (PRA) to identify pests of quarantine significance that could follow the pathway of interstate movement into the continental United States and, based on that PRA, a risk management document (RMD) to identify phytosanitary measures that could be applied to the commodity to mitigate the pest risk. We have concluded thatAlliumspp. leaves can be safely moved from Hawaii to the continental United States using one or more of the six designated phytosanitary measures listed in § 318.13-4(b).

Therefore, in accordance with § 318.13-4(c), we are announcing the availability of our PRA and RMD for public review and comment. The documents may be viewed on the Regulations.gov Web site or in our reading room (seeADDRESSESabove for a link to Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the PRA and RMD by calling or writing to the person listed underFOR FURTHER INFORMATION CONTACT. Please refer to the subject of the analysis when requesting copies.

After reviewing any comments we receive, we will announce our decision regarding the interstate movement ofAlliumspp. leaves from Hawaii in a subsequent notice. If the overall conclusions of our analysis and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will authorize the interstate movement ofAlliumspp. leaves from Hawaii into the continental United States subject to the requirements specified in the RMD.

The Foreign Agricultural Service (FAS) announces that it will accept claims from eligible individuals or firms regarding distributions from the Pima Agriculture Cotton Trust Fund (Trust Fund) authorized under Section 12314 of the Agricultural Act of 2014 (Pub. L. 113-79) (the Act). FAS is also requesting comment on the burden of collecting this information.

DATES:

Effective Date:For calendar year 2014 distributions, all claims and affidavits must be electronically filed with FAS no later than June 2, 2014. Comments on this notice must be received by FAS or carry a postmark or equivalent no later than June 2, 2014 for consideration. Comments on the Paperwork Reduction Act (PRA) portion must be submitted by July 1, 2014 for consideration.

ADDRESSES:

Affidavits, supporting documentation, and claims for distribution from the Trust Fund must be sent electronically to the, Office of Trade Programs, Import Programs and Export Sales Reporting Division of the Foreign Agricultural Service to the following email address:IPERD@FAS.USDA.GOV.

FOR FURTHER INFORMATION CONTACT:

Paul Trupo at (202) 720-1335, or via email at:PAUL.TRUPO@FAS.USDA.GOV

Background: Section 12314 of the Act establishes the Trust Fund in the Treasury of the United States. The Trust Fund is comprised of funds transferred from the Commodity Credit Corporation in annual amounts equal to $16,000,000 for each of calendar years 2014 through 2018, to remain available until expended. The purpose of the Trust Fund is to reduce the injury to domestic manufacturers resulting from tariffs on cotton fabric that are higher than tariffs on certain apparel articles made of cotton fabric. The Act authorizes distributions out of the Trust Fund in each of calendar years 2014 through 2018, payable to: (1) One or more nationally recognized associations established for the promotion of pima cotton for use in textile and apparel goods; (2) yarn spinners of pima cotton that produce ring spun cotton yarns in the United States; and (3) manufacturers who cut and sew cotton shirts in the United States who certify that they used imported cotton fabric during calendar year 2013. Eligible claimants are directed to submit a notarized affidavit, following the statutory procedures specified Section 12314(c) or (d) of the Act, as applicable, to claim a distribution from the Trust Fund. Because section 12314 is self-effectuating, FAS will not be issuing regulations to implement the program this year. This notice sets forth the law and announces applicable deadlines for claim and affidavit submission as well as the address to which claims, affidavits and supporting documents must be sent.

SUPPLEMENTARY INFORMATION:

Section 12314 of Act (Pub. L. 113-79) is set forth below in its entirety, followed by information about how to apply for a distribution from the Trust Fund. Sec. 12314 PIMA AGRICULTURE COTTON TRUST FUND.

(a) ESTABLISHMENT OF TRUST FUND.—There is established in the Treasury of the United States a trust fund to be known as the “Pima Agriculture Cotton Trust Fund” (in this section referred to as the “Trust Fund”), consisting of such amounts as may be transferred to the Trust Fund pursuant to subsection (h), and to be used for the purpose of reducing the injury to domestic manufacturers resulting from tariffs on cotton fabric that are higher than tariffs on certain apparel articles made of cotton fabric.

(b) DISTRIBUTION OF FUNDS.—From amounts in the Trust Fund, the Secretary shall make payments annuallybeginning in calendar year 2014 for calendar years 2014 through 2018 as follows:

(1) Twenty-five percent of the amounts in the Trust Fund shall be paid to one or more nationally recognized associations established for the promotion of pima cotton for use in textile and apparel goods.

(2) Twenty-five percent of the amounts in the Trust Fund shall be paid to yarn spinners of pima cotton that produce ring spun cotton yarns in the United States, to be allocated to each spinner in an amount that bears the same ratio as—

(A) the spinner's production of ring spun cotton yarns, measuring less than 83.33 decitex (exceeding 120 metric number) from pima cotton in single and plied form during calendar year 2013 (as evidenced by an affidavit provided by the spinner that meets the requirements of subsection (c)), bears to—

(B) the production of the yarns described in subparagraph (A) during calendar year 2013 for all spinners who qualify under this paragraph.

(3) Fifty percent of the amounts in the Trust Fund shall be paid to manufacturers who cut and sew cotton shirts in the United States who certify that they used imported cotton fabric during calendar year 2013, to be allocated to each such manufacturer in an amount that bears the same ratio as—

(A) the dollar value (excluding duty, shipping, and related costs) of imported woven cotton shirting fabric of 80s or higher count and 2-ply in warp purchased by the manufacturer during calendar year 2013 (as evidenced by an affidavit provided by the manufacturer that meets the requirements of subsection (d)) used in the manufacturing of men's and boys' cotton shirts, bears to—

(B) the dollar value (excluding duty, shipping, and related costs) of the fabric described in subparagraph (A) purchased during calendar year 2013 by all manufacturers who qualify under this paragraph.

(c) AFFIDAVIT OF YARN SPINNERS.—The affidavit required by subsection (b)(2)(A) is a notarized affidavit provided annually by an officer of a producer of ring spun yarns that affirms—

(1) that the producer used pima cotton during the year in which the affidavit is filed and during calendar year 2013 to produce ring spun cotton yarns in the United States, measuring less than 83.33 decitex (exceeding 120 metric number), in single and plied form;

(2) the quantity, measured in pounds, of ring spun cotton yarns, measuring less than 83.33 decitex exceeding 120 metric number), in single and plied form during calendar year 2013; and (3) that the producer maintains supporting documentation showing the quantity of such yarns produced, and evidencing the yarns as ring spun cotton yarns, measuring less than 83.33 decitex (exceeding 120 metric number), in single and plied form during calendar year 2013.

(d) AFFIDAVIT OF SHIRTING MANUFACTURERS.—

(1) IN GENERAL.—The affidavit required by subsection (b)(3)(A) is a notarized affidavit provided annually by an officer of a manufacturer of men's and boys' shirts that affirms—

(A) that the manufacturer used imported cotton fabric during the year in which the affidavit is filed and during calendar year 2013, to cut and sew men's and boys' woven cotton shirts in the United States;

(B) the dollar value of imported woven cotton shirting fabric of 80s or higher count and 2-ply in warp purchased by the manufacturer during calendar year 2013;

(C) that the manufacturer maintains invoices along with other supporting documentation (such as price lists and other technical descriptions of the fabric qualities) showing the dollar value of such fabric purchased, the date of purchase, and evidencing the fabric as woven cotton fabric of 80s or higher count and 2-ply in warp; and

(D) that the fabric was suitable for use in the manufacturing of men's and boys' cotton shirts.

(2) DATE OF PURCHASE.—For purposes of the affidavit under paragraph (1), the date of purchase shall be the invoice date, and the dollar value shall be determined excluding duty, shipping, and related costs.

(e) FILING DEADLINE FOR AFFIDAVITS.—Any person required to provide an affidavit under this section shall file the affidavit with the Secretary or as directed by the Secretary—

(1) in the case of an affidavit required for calendar year 2014, not later than 60 days after the date of the enactment of this Act; and

(2) in the case of an affidavit required for any of calendar years 2015 through 2018, not later than March 15 of that calendar year.

(f) TIMING OF DISTRIBUTIONS.—The Secretary shall make a payment under paragraph (2) or (3) of subsection (b)—

(1) for calendar year 2014—

(A) not later than the date that is 30 days after the filing of the affidavit required with respect to that payment; or

(B) if the Secretary is unable to make the payment by the date described in subparagraph (A), as soon as practicable thereafter; and

(2) for calendar years 2015 through 2018, not later than the date that is 30 days after the filing of the affidavit required with respect to that payment.

(g) MEMORANDUM OF UNDERSTANDING.—The Secretary and the Commissioner responsible for U.S. Customs and Border Protection shall, as soon as practicable after the date of the enactment of this Act, negotiate a memorandum of understanding to establish procedures pursuant to which the Commissioner will assist the Secretary in carrying out the provisions of this section.

(h) FUNDING.—Of the funds of the Commodity Credit Corporation, the Secretary shall transfer to the Trust Fund $16,000,000 for each of calendar years 2014 through 2018, to remain available until expended.

Procedures for Claiming a Distribution Under the Statute

Eligible claimants for a distribution from the Trust Fund are directed to submit a notarized affidavit, following the statutory procedures specified in section 12314(c) of the Act for yarn spinners, and Section 12314 (d) of the Act for shirting manufacturers, to claim a distribution from the Pima Agricultural Cotton Trust Fund. Claimants are advised to note that sections 12314(c) of the Act require each affidavit submitted by yarn spinners to provide definitive statements and supporting documentation verifying their eligibility. Section 12314(d) of the Act require each affidavit submitted by shirting manufacturers to provide definitive statements and supporting documentation verifying their eligibility. All claimants must provide FAS with a W-9 form to indicate and certify their taxpayer identification number. All claimants must also provide a Form 1199A, a direct deposit sign-up form, to facilitate any transfer of funds. Trade associations filing a claim for a distribution must electronically provide a notarized statement whether they are a domestic nationally recognized association established for the promotion of pima cotton for domestic use in textile and apparel goods. Trade Associations must also electronically provide W-9 and W-1199 forms of the Internal Revenue Service applicable to the eligible claimant for tax year 2013 as supporting documentation. All claimants must maintain such documentation as they have affirmed to exist in their respective affidavits.

Deadlines for Claim/Affidavit Submission

All claims, affidavits, and supporting documentation by eligible claimants for calendar year 2014 distributions must be sent to FAS no later than 30 days following the publication of this notice.

ADDRESSES:

The office charged with administering the Trust Fund is the Foreign Agricultural Service, Office of Trade Programs, Import Policies and Export Reporting Division. This office is physically located at: 1400 Independence Ave. SW., Mail Stop 1021, Washington, DC 20250. Claims and affidavits for distribution from the Trust Fund, including any supporting documentation that may be subsequently requested by FAS, must be submitted electronically to the following email address:IPERD@FAS.USDA.GOV.

Request for Comment on Information CollectionSUMMARY:

In accordance with the Paperwork Reduction Act (PRA) of 1995, FAS is requesting comments from all interested individuals and organizations on the Pima Agricultural Cotton Trust Fund (referred to as the “Trust Fund”). This is a new information collection request.

Claimants will be required to submit a notarized affidavit to request a distribution from the Trust Fund electronically to FAS.

SUPPLEMENTARY INFORMATION:

Title:Pima Agricultural Cotton Trust Fund

OMB Control Number:0551-New.

Type of Request:New Collection.

Abstract:This information collection is required for affidavits submitted to FAS for claims against the Pima Agricultural Cotton Trust Fund.

Estimate of Burden: Public reporting for this collection of information is estimated to average 60 minutes per response.

Respondents:There are three groups of potential respondents, all of whom must meet the requirements of Section 12314 of Act (Pub. L. 113-79): (1) One or more nationally recognized associations established for the promotion of pima cotton for use in textile and apparel goods; (2) Certain yarn spinners of pima cotton that produce ring spun cotton yarns in the United States from pima cotton during calendar year 2013; (3) Manufacturers who cut and sew cotton shirts in the United States who certify that they used imported cotton fabric during calendar year 2013.

Estimated Number of Respondents:12

Estimated Number of Responses per Respondent:1.

Estimated Total Annual Number of Responses:12

Estimated Total Annual Burden on Respondents:12 hours.

Copies of this information collection can be obtained from Connie Ehrhart, the Agency Information Collection Coordinator, at (202) 690-1589 or email atConnie.Ehrhart@fas.usda.gov.

Request for comments:We are requesting comments on all aspects of this information collection to help us to: (1) Evaluate whether the collection of information is necessary for the proper performance of FSA's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of FAS's estimate of burden including the validity of the methodology and assumptions used; (3) Enhance the quality, utility and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for Office of Management and Budget approval.

E-Government Act Compliance

FAS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Persons with disabilities who require an alternative means for communication of information (e.g., Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TDD).

The Rural Business-Cooperative Service (RBS), an Agency within the U.S. Department of Agriculture (USDA) Rural Development mission area, announces the availability of two individual grants: one single $500,000 grant from the rural transportation funds appropriated for the Rural Business Enterprise Grant (RBEG) program and another single $250,000 grant for Federally Recognized Native American Tribes' (FRNATs) (collectively “Programs”) from funds appropriated for the RBEG program. RBS will administer these awards under the RBEG program and 7 U.S.C. 1932(c)(2) for fiscal year (FY) 2014. Each grant is to be competitively awarded to an eligible applicant which is a qualified national non-profit organization. One grant is for the provision of technical assistance to rural transportation (RT) projects and the other grant will be for the provision of technical assistance to RT projects operated by FRNAT's only.

All applicants are responsible for any expenses incurred in developing their applications.

DATES:

The deadline for receipt of applications in the USDA Rural Development State Office is no later than 4:30 p.m. (local time) on July 1, 2014. Applications received at a USDA Rural Development State Office after that date will not be considered for FY 2014 funding.

ADDRESSES:

Entities wishing to apply for assistance should contact the appropriate USDA Rural Development State Office to receive copies of the application package. A list of the USDA Rural Development State Offices addresses and telephone numbers can be found online at:http://www.rurdev.usda.gov/StateOfficeAddresses.html.

FOR FURTHER INFORMATION CONTACT:

Please contact the USDA Rural Development State Office in the State in which the project will be located.

SUPPLEMENTARY INFORMATION:Overview

Federal Agency:Rural Business-Cooperative Service.

Solicitation Opportunity Title:Rural Business Enterprise Grants.

Announcement Type:Initial Announcement.

Catalog of Federal Domestic Assistance Number:10.769.

Dates:Application Deadline: Completed applications must be received in the USDA Rural Development State Office no later than 4:30 p.m. (local time) on July 1, 2014, to be eligible for FY 2014 grant funding. Applications received after this date will not be eligible for FY 2014 grant funding.

I. Funding Opportunity Description

A.Purpose of the Program.The purpose of this program is to improve the economic conditions of rural areas.

B.Statutory Authority.This program is authorized under section 310B(c) of the Consolidated Farm and Rural Development Act (CONACT) (7 U.S.C. 1932(c)). Regulations are contained in 7 CFR part 1942, subpart G. The program is administered on behalf of RBS at the State level by the USDA Rural Development State Offices. Assistance provided to rural areas under the program may include the provision of on-site technical assistance to local and regional governments, public transit agencies, and related non-profit and for-profit organizations in rural areas; the development of training materials; and the provision of necessary training assistance to local officials and agencies in rural areas.

Awards under the RBEG passenger transportation program will be made on a competitive basis using specific selection criteria contained in 7 CFR part 1942, subpart G, and in accordance with section 310B(c)(2) of the CONACT. Information required to be in the application package includes Forms SF 424, “Application for Federal Assistance;” Form RD 1940-20, “Request for Environmental Information;” Scope of Work Narrative; Income Statement; Balance Sheet or Audit for previous 3 years; AD-1047, “Debarment/Suspension Certification;” AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion;” AD-1049, “Certification Regarding Drug-Free Workplace Requirements;” SF LLL, “Disclosure of Lobbying Activities;” RD 400-1, “Equal Opportunity Agreement;” RD 400-4, “Assurance Agreement;” a letter stating Board authorization to obtain assistance; and a letter certifying citizenship, as referenced in 7 CFR 1942.307(b). For the FRNAT grant, which must benefit FRNATs, at least 75 percent of the benefits of the project must be received by members of FRNATs. The project that scores the greatest number of points based on the RBEG selection criteria and the discretionary points will be selected for each grant.

Applicants must be qualified national non-profit organizations with experience in providing technical assistance and training to rural communities Nation-wide for the purpose of improving passenger transportation service or facilities. To be considered “national,” RBS requires a qualified organization to provide evidence that it operates RT assistance programming Nation-wide. There is not a requirement to use the grant funds in a multi-State area. Grants will be made to qualified national non-profit organizations for the provision of technical assistance and training to rural communities for the purpose of improving passenger transportation services or facilities.

Definitions

C.Definition of Terms.The definitions applicable to this Notice are published at 7 CFR 1942.304.

D.Application awards.The Agency will review, evaluate, and score applications received in response to this Notice based on the provisions in 7 CFR part 1942, subpart G and as indicated in this Notice.

II. Award Information

Type of Award:Grant.

Fiscal Year Funds:FY 2014.

Total Funding:$750,000.

Approximate Number of Awards:Two.

Average Award:One single $500,000 grant and another single $250,000 grant for FRNAT's.

Award Date:August 15, 2014, subject to the availability of funding.

III. Eligibility InformationA. Eligible Applicants

To be considered eligible, an entity must be a qualified national non-profit organization serving rural areas as evidenced in its organizational documents and demonstrated experience. Grants will be competitively awarded to qualified national non-profit organizations.

B. Cost Sharing or Matching

Matching funds are not required.

C. Other Eligibility Requirements

Applications will only be accepted from qualified national non-profit organizations to provide technical assistance for rural transportation.

D. Completeness Eligibility

Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements.

For further information, entities wishing to apply for assistance should contact the USDA Rural Development State Office provided in theADDRESSESsection of this Notice to obtain copies of the application package.

Applicants are encouraged to submit applications through the Grants.gov Web site at:http://www.grants.gov. Applications may be submitted in either electronic or paper format. Users of Grants.gov will be able to download a copy of the application package, complete it off line, and then upload and submit the application via the Grants.gov Web site. Applications may not be submitted by electronic mail.

• When you enter the Grants.gov Web site, you will find information about submitting an application electronically through the site as well as the hours of operation. USDA

Rural Development strongly recommends that you begin the application process through Grants.gov in sufficient time to complete the application before the deadline date.

• You may submit all documents electronically through the Web site, including all

information typically included on the application and all necessary assurances and certifications.

• After electronically submitting an application through the Web site, the applicant

will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number.

• USDA Rural Development may request that the applicant provide original signatures on forms at a later date.

• If applicants experience technical difficulties on the closing date and are unable to meet the deadline, you may submit a paper copy of your application to your respective Rural Development State Office. Paper applications submitted to a Rural Development State Office must meet the closing date and local time deadline.

• Please note that applicants can locate the downloadable application package for this program by the Catalog of Federal Domestic Assistance Number or FedGrants Funding OpportunityNumber, which can be found athttp://www.Grants.gov.

All applicants, whether filing applications through www.Grants.gov or by paper, must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number which can be obtained at no cost via a toll-free request line at 1-866-705-5711 or athttp://www.dnb.com.

B. Content and Form of Submission

An application must contain all of the required elements. Each application received in a USDA Rural Development State Office will be reviewed to determine if it is consistent with the eligible purposes contained in section 310B(c)(2) of the CONACT. Each selection priority criterion outlined in 7 CFR 1942.305(b)(3) must be addressed in the application. Failure to address any of the criteria will result in a zero-point score for that criterion and will impact the overall evaluation of the application. Copies of 7 CFR part 1942, subpart G, will be provided by any interested applicant making a request to a USDA Rural Development State Office.

All projects to receive technical assistance through these passenger transportation grant funds are to be identified when the applications are submitted to the USDA Rural Development State Office. Multiple project applications must identify each individual project, indicate the amount of funding requested for each individual project, and address the criteria as stated above for each individual project.

For multiple-project applications, the average of the individual project scores will be the score for that application.

Explanation of Deadlines:Applications must be in the USDA Rural Development State Office by the deadline date.

V. Application Review Information

RBS will score applications based on the grant selection criteria and weights contained in 7 CFR part 1942, subpart G and will select grantees subject to the grantees satisfactory submission of the additional items required by 7 CFR part 1942, subpart G and the USDA Rural Development Letter of Conditions. The amount of an RT grant may be adjusted, in the RBS's discretion, to enable RBS to award RT grants to the two applications with the highest priority scores.

VI. Award Administration InformationA. Award Notices

Successful applicants will receive notification for funding from the USDA Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the grant award will be approved. Unsuccessful applications will receive notification by mail.

B. Administrative and National Policy Requirements

Additional requirements that apply to grantees selected for this program can be found in 7 CFR part 1942, subpart G. Grantees must further comply with applicable provisions of 7 CFR parts 3015, 3016, 3019, and 3052.

VII. Agency Contacts

For general questions about this announcement, please contact your USDA Rural Development State Office provided in theADDRESSESsection of this Notice.

VIII. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act, the paperwork burden has been cleared by the Office of Management and Budget (OMB) under OMB Control Number 0570-0022.

Federal Funding Accountability and Transparency Act

All applicants, in accordance with 2 CFR part 25, must have a DUNS number, which can be obtained at no cost via a toll-free request line at 1-866-705-5711 or online athttp://fedgov.dnb.com/webform. Similarly, all applicants must be registered in the System for Award Management (SAM) prior to submitting an application. Applicants may register for the SAM athttp://www.sam.gov. All recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive total compensation in accordance with 2 CFR part 170.

Nondiscrimination Statement:

The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online athttp://www.ascr.usda.gov/complaint_filing_cust.html, or at any USDA office, or call (866) 632-9992 to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442 or email atprogram.intake@usda.gov.

Individuals who are deaf, hard of hearing or have speech disabilities and wish to file either an EEO or program complaint may contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

Persons with disabilities, who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

This Notice is to invite applications for loans and grants under the Rural Economic Development Loan and Grant (REDLG) programs pursuant to 7 CFR part 4280, subpart A for fiscal year (FY) 2014. Funding to support $30.6 million in loans and $9.2 million in grants is currently available. The commitment of program dollars will be made to applicants of selected responses that have fulfilled the necessary requirements for obligation.

All applicants are responsible for any expenses incurred in developing their applications.

DATES:

Applications received during each month in the USDA Rural Development State Office no later than 4:30 p.m. (local time) on the last business day of each month will be considered for funding the following month in FY 2014.

ADDRESSES:

Submit applications in paper format to the USDA Rural Development State Office in the state where your project is located. A list of the USDA Rural Development State Offices addresses and telephone numbers can be found online at:http://www.rurdev.usda.gov/StateOfficeAddresses.html.

FOR FURTHER INFORMATION CONTACT:

Please contact the USDA Rural Development State Office provided in theADDRESSESsection of this Notice where the project will be located.

SUPPLEMENTARY INFORMATION:Overview

Federal Agency:Rural Business-Cooperative Service.

Funding Opportunity Type:Rural Economic Development Loans and Grants.

Announcement Type:Initial Announcement.

Catalog of Federal Domestic Assistance Number:10.854.

Dates:Application Deadline: Completed applications must be received in the USDA Rural Development State Office no later than 4:30 p.m. (local time) on the last business day of each month to be considered for funding in the following month in FY 2014.

I. Funding Opportunity Description

A.Purpose of the Program.The purpose of the program is to promote rural economic development and job creation projects.

B.Statutory Authority.These programs are authorized under 7 CFR part 4280, subpart A. Assistance provided to rural areas, as defined, under this program may include business startup costs, business expansion, business incubators, technical assistance feasibility studies, advanced telecommunications services and computer networks for medical, educational, and job training services, and community facilities projects for economic development. Awards are made on a competitive basis using specific selection criteria contained in 7 CFR part 4280, subpart A. Information required to be in the application includes an SF-424, “Application for Federal Assistance;” a Resolution of the Board of Directors; AD-1047, “Debarment/Suspension Certification;” Assurance Statement for the Uniform Act; Restrictions on Lobbying, AD-1049, “Certification Regarding Drug-Free Workplace Requirements;” Form RD 400-1, “Equal Opportunity Agreement;” Form RD 400-4, “Assurance Agreement;” Seismic Certification (if construction); Form RD 1940-20, “Request for Environmental Information;” RUS Form 7, “Financial and Statistical Report;” and RUS Form 7a, “Investments, Loan Guarantees, and Loans,” or similar information; and written narrative of project description. Applications will be tentatively scored by the State Offices and submitted to the National Office for review.

Definitions

C.Definition of Terms.The definitions applicable to this Notice are published at 7 CFR 4280.3.

D.Application awards.The Agency will review, evaluate, and score applications received in response to this Notice based on the provisions found in 7 CFR part 4280, subpart A and as indicated in this Notice. However, the Agency advises all interested parties that the applicant bears the burden in preparing and submitting an application in response to this Notice whether or not funding is appropriated for these programs in FY 2014.

II. Award Information

Type of Awards:Loans and Grants.

Fiscal Year Funds:FY 2014.

Maximum Award:The following are maximum amounts per award: Loans—$2,000,000; Grants—$300,000.

Award Dates:The last day of the month following the month in which application was received.

III. Eligibility InformationA. Eligible Applicants

Loans and grants may be made to any entity that is identified by USDA Rural Development as an eligible borrower under the Rural Electrification Act. In accordance with 7 CFR 4280.13, applicants that are not delinquent on any Federal debt or otherwise disqualified from participation in these programs are eligible to apply. An applicant must be eligible under 7 U.S.C. 940c. Notwithstanding any other provision of law, any former Rural Utilities Service borrower that has repaid or prepaid an insured, direct or guaranteed loan under the Rural Electrification Act of 1936, or any not-for-profit utility that is eligible to receive an insured or direct loan under such Act, shall be eligible for assistance under section 313(b)(2)(B) of such Act in the same manner as a borrower under such Act. All other restrictions in this Notice will apply.

B. Cost Sharing or Matching

For loans, either the Ultimate Recipient or the Intermediary must provide supplemental funds for the project equal to at least 20 percent of the loan to the Intermediary. For grants, the Intermediary must establish a Revolving Loan Fund and contribute an amount equal to at least 20 percent of the Grant. The supplemental contribution must come from Intermediary's funds which may not be from other Federal Grants, unless permitted by law.

C. Other Eligibility Requirements

Applications will only be accepted for projects that promote rural economic development and job creation.

D. Completeness Eligibility

Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements.

For further information, entities wishing to apply for assistance should contact the Rural Development State Office identified in this Notice to obtain copies of the application package.

Applicants are encouraged to submit grant applications only through the Grants.gov Web site at:http://www.grants.gov.Applications may be submitted in either electronic or paper format. Users of Grants.gov will be able to download a copy of the application package, complete it off line, and then upload and submit the application via the Grants.gov Web site. Applications may not be submitted by electronic mail.

• When you enter the Grants.gov Web site, you will find information about submitting an application electronically through the site as well as the hours of operation. USDA Rural Development strongly recommends that you do not wait until the application deadline date to begin the application process through Grants.gov. To use Grants.gov, applicants must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number which can be obtained at no cost via a toll-free request line at 1-866-705-5711 or athttp://www.dnb.com.

• You may submit all documents electronically through the Web site,including all information typically included on the application for REDLGs and all necessary assurances and certifications.

• After electronically submitting an application through the Web site, the applicant will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number.

• USDA Rural Development may request that the applicant provide original signatures on forms at a later date.

• If applicants experience technical difficulties on the closing date and are unable to meet the deadline, you may submit a paper copy of your application to your respective Rural Development State Office. Paper applications submitted to a Rural Development State Office must meet the closing date and local time deadline.

• Please note that applicants must locate the downloadable application package for this program by the Catalog of Federal Domestic Assistance Number or FedGrants Funding Opportunity Number, which can be found athttp://www.grants.gov.

B. Content and Form of Submission

An application must contain all of the required elements. Each selection priority criterion outlined in 7 CFR 4280.42(b), must be addressed in the application. Failure to address any of the criteria will result in a zero-point score for that criterion and will impact the overall evaluation of the application. Copies of 7 CFR part 4280, subpart A, will be provided to any interested applicant making a request to a Rural Development State Office. An original copy only of the application is to be filed with the Rural Development State Office for the State where the Intermediary is located.

C. Submission Dates and Times

Application Dates:No later than 4:30 p.m. (local time) on the last business day of each month to be considered for funding in the following month.

Explanation of Dates:Applications must be in the USDA Rural Development State Office by the dates as indicated above.

V. Application Review Information

The National Office will score applications based on the grant selection criteria and weights contained in 7 CFR part 4280, subpart A, and will select an Intermediary

subject to the Intermediary's satisfactory submission of the additional items required by

that subpart and the USDA Rural Development Letter of Conditions.

VI. Award Administration InformationA. Award Notices

Successful applicants will receive notification for funding from the Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the loan/grant award will be approved. Provided the application and eligibility requirements have not changed, an application not selected will be reconsidered in three subsequent funding competitions for a total of four competitions. If an application is withdrawn, it can be resubmitted and will be evaluated as a new application.

B. Administrative and National Policy Requirements

Additional requirements that apply to Intermediary's selected for this program can be found in 7 CFR part 4280, subpart A. Applicable provisions of 7 CFR parts 3015, 3019, and 3052 also apply.

VII. Agency Contacts

For general questions about this announcement, please contact your USDA Rural Development State Office provided in theADDRESSESsection of this Notice.

VIII. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995, the information collection requirement contained in this Notice is approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0024.

Federal Funding Accountability and Transparency Act

All applicants, in accordance with 2 CFR part 25, must have a DUNS number, which can be obtained at no cost via a toll-free request line at 1-866-705-5711 or online athttp://fedgov.dnb.com/webor. Similarly, all grant applicants must be registered in the System for Award Management (SAM) prior to submitting an application. Applicants may register for the SAM athttp://www.sam.gov. All recipients of Federal financial grant assistance are required to report information about first-tier sub-awards and executive total compensation in accordance with 2 CFR part 170.

Nondiscrimination Statement:

The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online athttp://www.ascr.usda.gov/complaint_filing_cust.html, or at any USDA office, or call (866) 632-9992 to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442 or email atprogram.intake@usda.gov.

Individuals who are deaf, hard of hearing, or have speech disabilities and wish to file either an EEO or program complaint may contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

Persons with disabilities, who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

USDA announces the availability of grants through the Rural Business Opportunity Grant (RBOG) Program for Fiscal Year (FY) 2014. Governmental entities, nonprofitcorporations, institutions of higher education, and Indian tribes may apply. Approximately $2.25 million is available in reserved funding and will be distributed as follows: $1,330,180 is reserved for projects benefitting Federally Recognized Native American Tribes (“Native American”) in rural areas (see Pub. L. 113-76) and $919,820 is reserved until August 15, 2014 for projects benefitting Rural Economic Area Partnerships (“Partnerships”) (see P.L. 113-76, Sec. 746). Any Partnership funds unobligated after August 15, 2014, will be unreserved RBOG funds for business opportunity projects. Applications are limited to $100,000 or less. See 7 CFR part 4284, subpart G for additional program information.

DATES:

Complete applications must be submitted on paper or electronically according to the following deadlines:

Paper applications must be postmarked and mailed, shipped, or sent overnight no later than June 17, 2014, to be eligible for FY 2014 grant funding. Paper applications should be sent to the state office located in the state where the project is located. An applicant may also hand carry their application to Rural Development field office, but it must be received by close of business on the deadline date.

If you would like to submit an electronic application, you must follow the instructions for the RBOG funding announcement on www.grants.gov. If you would like to submit an electronic application, your application must be received byhttp://www.grants.govno later than midnight eastern time June 13, 2014, to be eligible for FY 2014 grant funding. You should review the Grants.gov Web site athttp://grants.gov/applicants/organization_registration.jspfor instructions on the process of registering your organization as soon as possible to ensure that you are able to meet the electronic application deadline.

If you do not meet the deadline for submitting an electronic application, you may submit a paper application by the deadline as discussed above. Applications that are submitted after the above deadlines will not be eligible for FY 2014 grant funding.

ADDRESSES:

You should contact a Rural Development State Office if you have questions or need a copy of the application forms. Applications may be submitted in electronic or paper format. If you submit an electronic application, you must follow the instructions for the RBOG funding announcement on www.grants.gov. If you want to submit a paper application, the application should be sent to the State Office located in the State where the project is located. In the case of a multi-state project, you must submit your application to the Rural Development State Office located in the State where the majority of the work will be conducted. You can find the address for your Rural Development State Office at:http://www.rurdev.usda.gov/StateOfficeAddresses.html.

Dates:To be eligible for FY 2014 funding, complete applications must be submitted on paper or electronically according to the following deadlines:

Paper applications must be postmarked and mailed, shipped, or sent overnight no later than June 17, 2014, to be eligible for FY 2014 grant funding. You may also hand carry your application to one of Rural Development's field offices, but it must be received by close of business on the deadline date. Late applications are not eligible for FY 2014 grant funding.

Electronic copies must be received byhttp://www.grants.govno later than midnight eastern time June 13, 2014, to be eligible for FY 2014 grant funding. You should review the Grants.gov Web site athttp://grants.gov/applicants/organization_registration.jspfor instructions on the process of registering your organization as soon as possible to ensure that you are able to meet the electronic application deadline.

If you do not meet the deadline for submitting an electronic application, you may submit a paper application by the deadline as discussed above. Late applications will not be eligible for FY 2014 grant funding.

I. Funding Opportunity Description

The RBOG Program is authorized under section 306(a)(11) of the Consolidated Farm and Rural Development Act (CONACT) (7 U.S.C. 1926(a)(11)). The regulations for this program are published at 7 CFR part 4284 subparts A and G, which are incorporated by reference in this Notice.

The primary objective of the program is to improve the economic conditions of rural areas. Assistance provided to rural areas under this program includes the following:

• Rural business incubators

• technology-based economic development

• feasibility studies and business plans

• long-term business strategic planning

• leadership and entrepreneur training

Definitions

The terms you need to know are published at 7 CFR 4284.3 and 4284.603. In addition, the term “you” referenced throughout this Notice should be understood to mean the applicant and the terms “we” and “us” should be understood to mean Rural Business-Cooperative Services, Rural Development, USDA. Finally, the term conflict of interest should be understood as follows.

Conflict of interest—A situation in which a person or entity has competing personal, professional, or financial interests that make it difficult for the person or business to act impartially. Federal procurement standards prohibit transactions that involve a real or apparent conflict of interest for owners, employees, officers, agents, or their immediate family members having a financial or other interest in the outcome of the project; or that restrict open and free competition for unrestrained trade. Specifically, project funds shall not be used for services or goods going to, or coming from, a person or entity with a real or apparent conflict of interest, including, but not limited to, owner(s) and their immediate family members. An example of a conflict of interest is when the grantee provides direct assistance to an organization in which it has an ownership interest. In cases of tribally-owned businesses, to avoid a conflict of interest, any business assisted by a tribe must be held through a separate entity, such as a tribal corporation. The separate entity may be owned by the tribe and distribute profits to the tribe. However, the entity's governing board must be independent from the tribal government and be elected or appointed for a specific time period. These board members must not be subject to removal without cause by the tribal government. The entity's board members must not, now or in the future, make up the majority of members of the tribal council or bemembers of the tribal council or other governing board of the tribe.

II. Award Information

Type of Award:Competitive Grant

Fiscal Year Funds:FY 2014

Total Funding:$2.25 million to be distributed as follows: $1,330,180 for projects benefitting Native Americans in rural areas and $919,820 for projects benefitting Partnerships. Any Partnership funds unobligated after August 15, 2014, will be unreserved RBOG funds for business opportunity projects.

Maximum Award:$100,000

Anticipated Award Date:September 1, 2014.

III. Eligibility InformationA. Eligible Applicants

Grants may be made to governmental entities, nonprofit corporations, institutions of higher education, and Indian tribes.

You must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number (see Section IV.B.) and register in the System for Awards Management (SAM, formerly managed by the Central Contractor Registry (CCR)) prior to submitting an application. (See 2 CFR 25.200(b).) In addition, you must maintain your registration in SAM during the time your application is active. Finally, you must have the necessary processes and systems in place to comply with the reporting requirements in 2 CFR 170.200(b), as long as you are not exempted from reporting. Exemptions are identified at 2 CFR 170.110(b).

For additional information on applicant eligibility, see 7 CFR 4284.620.

B. Cost Sharing or Matching

Matching funds are not required.

C. Other Eligibility Requirements

An application must propose to use project funds, including grant and other contributions committed under the evaluation criterion located at 7 CFR 4284.639, for eligible purposes (see 7 CFR 4284.621). Also, the proposed project must benefit a rural area; thus, all ultimate recipients of services provided through the project must either reside in a rural area (if an individual) or be located in a rural area (if a business).

D. Ineligible Costs

Project funds, including grant and other contributions, cannot be used for ineligible purposes (See the Federal Acquisition Regulation and 7 CFR 4284.10 and 4284.629). Also, you shall not use project funds for the following:

• To duplicate current services or replace or substitute support previously provided. In particular, project funds cannot be used to pay for the salaries and benefits of existing employees and/or positions, except in cases when the project will require that an existing part-time employee/position be converted to a full-time employee/position to accomplish project tasks. In that case, the difference between the part-time salary and benefits and the full-time salary and benefits can be charged to the project. Additionally, new staff, consultants, or contractors that will be hired for the project can be paid for with project funds.

• To perform construction activities, including renovations;

• To plan a facility;

• To perform engineering work;

• To set up and operate revolving loan funds;

• To install or purchase demonstration equipment;

• To buy input supplies (for example, beads, food, and metal) for technical training on production or processing methods;

• To provide assistance to only one individual, organization, or business;

• To conduct industry-level feasibility studies unless you provide evidence in the application that the producers of the product have specifically requested that your organization performs the study;

• To pay general operating costs of any organization, including the applicant and any project beneficiaries; and

• To engage in any activities that are considered a Conflict of Interest, as defined by this Notice.

If you include funds in your budget that are for ineligible purposes, we will consider the application for funding if the ineligible purposes total 10 percent or less of an applicant's total project budget. However, if the application is successful, those ineligible costs must be removed from the work plan and budget before we will make the grant award. If we cannot determine the percentage of ineligible costs, the application will not be considered for funding.

Finally, if you have an existing RBOG award, you must be performing satisfactorily to be considered eligible for a new award. Satisfactory performance includes, but is not limited to, being up-to-date on all financial and performance reports and being current on all tasks as approved in the work plan.

D. Completeness Eligibility

An application will not be considered for funding if it does not provide sufficient information to determine eligibility or is missing required elements. For more information on application requirements, see 7 CFR 4284.638.

For further information, you should contact your respective Rural Development State Office. Instructions for identifying Rural Development State Offices can be found in theADDRESSESsection of this Notice. Program information may also be obtained at:http://www.rurdev.usda.gov/bcp_rbog.html.

B. Form of Submission

You may submit an application in paper form or electronically. If you submit an application in paper form, any forms requiring signatures must include an original signature.

To submit an application electronically, you must use the Grants.gov Web site at:http://www.grants.gov.You may not submit an application electronically in any way other than through Grants.gov.

• When you enter the Grants.gov Web site, you will find information about submitting an application electronically through the site, as well as the hours of operation.

• To use Grants.gov, you must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number, which can be obtained at no cost via a toll-free request line at (866) 705-5711. We strongly recommend that you do not wait until the application deadline date to begin the application process through Grants.gov.

• Before submitting an application, you must also be registered and maintain registration in SAM (formerly the CCR database). (See 2 CFR part 25.) You may register in SAM athttps://www.sam.gov/portal/public/SAM/.

• You must submit all of your application documents electronically through Grants.gov.

• After electronically submitting an application through Grants.gov, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number.

• You may be required to provide original signatures on forms at a later date.

• You can locate the Grants.gov downloadable application package forthis program by using a keyword, the program name, the Catalog of Federal Domestic Assistance Number, or the Funding Opportunity Number.

C. Application Contents

An application must contain all of the required forms and application elements described in 7 CFR 4284.638 and as otherwise clarified in this Notice. Further clarification of the application requirements is as follows:

1. Standard Form (SF) 424, “Application for Federal Assistance.” Your DUNS number should be identified in the “Organizational DUNS” field. Additionally, you must provide a Commercial and Government Entity (CAGE) code and expiration date. Because there are no specific fields for a CAGE code and expiration date, you may identify them anywhere you want to on the form. If you do not include the CAGE code and expiration date and the DUNS number in your application, it will not be considered for funding.

2. You must include a project work plan that identifies each task to be performed, along with the time period of performance and key personnel (if known) for each task, the amounts of grant funds and other contributions needed for each task, and clear deliverables for each task. If you expect to earn program income during the project period, you must include it in your budget. Program income can include fees collected from businesses assisted by the project. See 7 CFR 3016.25 and 3019.24.

3. For Partnership applications only, you must include the benchmark(s) from your Partnership zone's strategic plan that your project supports.

D. Submission Date and Time

Application Deadline date: For electronic applications, the deadline date is June 13, 2014. For paper applications, the deadline date is June 17, 2014.

Explanation of Deadlines: Complete paper applications must be postmarked and mailed, shipped, or sent overnight no later than June 17, 2014, to be eligible for FY 2014 grant funding. You may also hand carry your application to one of Rural Development's field offices, but it must be received by close of business on the deadline date. Electronic applications submitted through Grants.gov will be accepted by the system through midnight eastern time on the June 13, 2014. Late applications are not eligible for FY 2014 funding.

E. Intergovernmental Review

Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs,” applies to this program. This EO requires that Federal agencies provide opportunities for consultation on proposed assistance with State and local governments. Many States have established a Single Point of Contact (SPOC) to facilitate this consultation. For a list of States that maintain a SPOC, please see the White House Web site:http://www.whitehouse.gov/omb/grants_spoc.If your State has a SPOC, you may submit a copy of the application directly for review. Any comments obtained through the SPOC must be provided to your Rural Development State Office for consideration as part of your application. If your State has not established a SPOC, or if you do not want to submit a copy of your application, our State Office will submit your application to the SPOC or other appropriate agency or agencies.

F. Environmental Review

Applications for financial assistance are subject to an environmental review. However, if an application is for technical assistance or planning purposes, it is generally excluded from the environmental review process (See 7 CFR 1940.310(e)(1)). We will ensure that any required environmental review is completed prior to approval of an application or obligation of funds.

V. Application Review Information

We will review each application to determine if it is eligible for assistance based on the requirements in 7 CFR part 4284, subpart G as well as other applicable Federal regulations. Eligible applications will be initially scored by the USDA Rural Development State Offices and submitted to the National Office for final review and selection. Applications must have a minimum score of 60 points, prior to the addition of any Administrator discretionary points, or they will not be funded, regardless of the amount of available funds. Applications will be funded in rank order.

You must address each selection criterion outlined in 7 CFR 4284.639 in your application. Any criterion not substantively addressed will receive zero points.

To assist you with addressing each criterion, we are providing what we consider to be necessary documentation along with an explanation of how we will score each criterion below.

1. Sustainability of Economic Development (7 CFR 4284.639(a)). You must identify the economic development (see 7 CFR 4284.603 for a definition) that will occur as a result of their project and describe how that development will be sustainable without any assistance from governments (including local, State, and Federal) or other organizations outside the community. Sustainability may include, but is not limited to, user fees or a continuing source of funds from a community organization. We will score the criterion as follows:

• 0 points if you do not identify at least one type of economic development.

• 1-2 points if you identify at least one type of economic development, but are unable to reasonably quantify it or demonstrate sustainability.

• 3-4 points if you identify at least one type of economic development and reasonably quantify it.

• 5-6 points if you identify at least one type of economic development, reasonably quantify it, and demonstrate that it can be sustained for at least 1 year after the completion of the project through user fees, community organization support, or other non-governmental methods.

• 7-8 points if you identify at least one type of economic development, reasonably quantify it, and demonstrate that it can be sustained for at least 3 years after the completion of the project through user fees, community organization support, or other non-governmental methods.

• 9-10 points if you identify at least one type of economic development, reasonably quantify it, and demonstrate that it can be sustained for at least 5 years after the completion of the project through user fees, community organization support, or other non-governmental methods.

2. Improvements in the Quality of Economic Activity (7 CFR 4284.639(b)). You must quantitatively describe how your project will improve the economic activity in your service area through higher wages, improved benefits, greater career potential, and/or the use of higher level skills than are currently typical. We will score the criterion as follows:

• 0 points if you do not quantitatively describe at least one way your project will improve the economic activity in your service area.

• 1-2 points if you quantitatively describe one way your project will improve the economic activity in your service area.

• 3-4 points if you quantitatively describe two ways your project will improve the economic activity in your service area.

• 5-6 points if you quantitatively describe three ways your project will improve the economic activity in your service area.

• 7-8 points if you quantitatively describe four ways your project will improve the economic activity in your service area.

• 9-10 points if you quantitatively describe five or more ways your project will improve the economic activity in your service area.

3. Other Contributions (7 CFR 4284.639(c)). You must provide documentation indicating who will be providing the other source of funds, the amount of funds, when those funds will be provided, and how the funds will be used in the project budget. Examples of acceptable documentation include: a signed letter from the source of funds stating the amount of funds, when the funds will be provided, and what the funds can be used for or a signed resolution from your governing board authorizing the use of a specified amount of funds for specific components of the project. The other contributions you identify must be specifically dedicated to the project and cannot include your organization's general operating budget. No credit will be given for in-kind donations of time, goods, and/or services from any organization, including the applicant organization. Additionally, we will not consider program income or expected revenue as other contributions, unless a commitment letter from the organization that will be paying the fees provides a letter stating the amount of the funds that will be paid, when they will be paid, and what they can be used for, if applicable. If you choose, you may use a template to summarize the other contributions. The template is available either from your Rural Development State Office or the program Web site at:http://www.rurdev.usda.gov/bcp_rbog.html.We will score the criterion as follows:

• 0 points if your other contributions total 25 percent or less of the total project cost.

• 10 points if your other contributions are greater than 25 and less than or equal to 50 percent of the total project cost.

• 20 points if your other contributions are more than 50 percent and less than or equal to 80 percent of the total project cost.

• 30 points if your other contributions are more than 80 percent of the total project cost.

4. Major Natural Disaster (7 CFR 4284.639(d)(1)). You must provide a Federal Emergency Management Agency (FEMA) disaster reference number or USDA disaster declaration date and description for any disasters that occurred within 3 years of the application deadline in the counties in the project service area. We will award 15 points if a FEMA disaster reference number or USDA disaster declaration date and description is provided for the majority of the counties in an applicant's service area; otherwise we will award 0 points.

5. Fundamental Structural Change (7 CFR 4284.639(d)(2)). You must describe a structural change (for example, the loss of major employer or closing of a military base) that occurred within or affected one or more of the counties in the project service area. The structural change must have occurred within the 3 years prior to submitting your application. We will award 15 points if the structural change affected the majority of the counties in your service area and if it caused the loss of at least 100 jobs; otherwise the Agency will award 0 points.

6. Long-Term Poverty (7 CFR 4284.639(d)(3)). You must provide the percentage of residents living below the poverty level from the 1990 decennial census and the most recent Five-Year American Community Survey (ACS) for the project's service area as follows. If you do not provide the requested statistics, we will award 0 points.

• If your project's service area is only one city or town, you must provide the percentage of residents living below the poverty level for that city or town from the 1990 census and the ACS. If your service area is unincorporated, please contact us to determine which data will be required. We will award 10 points if these statistics show that the city/town had a percentage of residents living below the poverty level that was above the State percentage in both the 1990 census and the ACS; otherwise we will award 0 points.

• If your project's service area is more than one city or town within a county, you must provide the percentage of residents living below the poverty level for the county from the 1990 census and the ACS. We will award 10 points if these statistics show that the county had a percentage of residents living below the poverty level that was above the State percentage in both the 1990 census and the ACS; otherwise we will award 0 points.

• If your project's service area includes multiple counties (even in part), you must provide the percentage of residents living below the poverty level from the 1990 census and the ACS for each county in the service area. We will award 10 points if these statistics show that more than 50 percent of the counties had a percentage of residents living below the poverty level that was above the State percentage in both the 1990 census and the ACS; otherwise we will award 0 points.

• If your project's service area is one or more Native American reservations, you must provide the percentage of residents living below the poverty level from the 1990 census and the ACS for each reservation in the service area. If the service area is one reservation, we will award 10 points if these statistics show that the reservation had a percentage of residents living below the poverty level that was above the State percentage in both the 1990 census and the ACS; otherwise we will award 0 points. If the service area is more than one reservation, we will award 10 points if these statistics show that more than half of the reservations had a percentage of residents living below the poverty level that was above the State percentage in both the 1990 census and the ACS; otherwise we will award 0 points.

If you need assistance locating the requested information, you should contact your Rural Development State Office or you can visit the RBOG program Web site at:http://www.rurdev.usda.gov/BCP_RBOG.html.

7. Long-Term Population Decline (7 CFR 4284.639(d)(4)). You must provide population statistics from the 1990 census and the most recent Five-Year ACS for the project's service area as follows. If you do not provide the requested statistics, we will award 0 points.

• If your project's service area is only one city or town, you must provide the population from the 1990 census and the ACS for that city or town. If your service area is unincorporated, please contact us to determine which data will be required. We will award 10 points if the city/town experienced a net loss of population between the 1990 census and the ACS; otherwise, we will award 0 points.

• If your project's service area is more than one city or town within a county, you must provide the population from the 1990 census and the ACS for the county. We will award 10 points if the county experienced a net loss of population between the 1990 census and the ACS; otherwise, we will award 0 points.

• If your project's service area includes multiple counties (even in part), you must provide the population from the 1990 census and the ACS for each county in the service area. We will award 10 points if more than 50 percent of the counties in the service area experienced a net loss of populationbetween the 1990 census and the ACS; otherwise, we will award 0 points.

• If your project's service area is one or more Native American reservations, you must provide the population from the 1990 census and the ACS for each reservation in the service area. If the service area includes one reservation, we will award 10 points if the reservation experienced a net loss of population between the 1990 census and the ACS; otherwise we will award 0 points. If the service area includes multiple reservations, we will award 10 points if more than 50 percent of the reservations in the service area experienced a net loss of population between the 1990 census and the ACS; otherwise, we will award 0 points.

If you need assistance locating the requested information, you should contact your Rural Development State Office or you can visit the RBOG program Web site at:http://www.rurdev.usda.gov/BCP_RBOG.html.

8. Long-Term Job Deterioration (7 CFR 4284.639(d)(5)). You must provide the unemployment rate from the 1990 census and the most recent Five-Year ACS for the project's service area as follows. If you do not provide the requested statistics, we will award 0 points.

• If your project's service area is only one city or town, you must provide the unemployment rate from the 1990 census and the ACS for that city or town. If your service area is unincorporated, please contact us to determine which data will be required. We will award 10 points if the city/town had an unemployment rate above the State unemployment rate in both the 1990 census and the ACS; otherwise, we will award 0 points.

• If your project's service area is more than one city or town within a county, you must provide the unemployment rate from the 1990 census and the ACS for the county. We will award 10 points if the county had an unemployment rate above the State unemployment rate in both the 1990 census and the ACS; otherwise, we will award 0 points.

• If your project's service area includes multiple counties (even in part), you must provide the unemployment rate from the 1990 census and the ACS for each county in the service area. We will award 10 points if more than 50 percent of the counties in the service area had an unemployment rate above the State unemployment rate in both the 1990 census and the ACS; otherwise, we will award 0 points.

• If your project's service area is one or more Native American reservations, you must provide the unemployment rate(s) from the 1990 census and the ACS for each reservation in the service area. If the service area includes one reservation, we will award 10 points if the reservation had an unemployment rate above the State unemployment rate in both the 1990 census and the ACS; otherwise we will award 0 points. If the service area includes multiple reservations, we will award 10 points if more than 50 percent of the reservations in the service area had unemployment rates above the State unemployment rate in both the 1990 census and the ACS; otherwise, we will award 0 points.

If you need assistance locating the requested information, you should contact your Rural Development State Office or you can visit the RBOG program Web site at:http://www.rurdev.usda.gov/BCP_RBOG.html.

9. Best Practices (7 CFR 4284.639(e)). You must describe how your project could be replicated, including any potentially necessary modifications, in other communities or service areas. We will score the criterion as follows:

• 0 points if your project could not be replicated.

• 1-3 points if your project could be replicated in another community, but with substantial modifications.

• 4-6 points if your project could be replicated in another community, but with moderate modifications.

• 7-10 points if your project could be replicated in another community, with minimal modifications.

10. Discretionary Points (7 CFR 4284.639(f)). If you wish to be considered for up to 20 additional discretionary points, your application must include a description of the following:

• The project service area, and/or

• The special importance for implementation of a regional strategic plan in partnership with other organizations, and/or

• The extraordinary potential for success of the project due to superior project plans or qualifications of your organization, including the key personnel for the project.

Applications can receive discretionary points from the Administrator of the Rural Business-Cooperative Service. Because awarding these points is completely at the option of the Administrator, no additional point break down can be provided.

VI. Award Administration InformationA. Award Notices

If an application is successful, you will receive notification regarding funding from the Rural Development State Office where the application was submitted. You must comply with all applicable statutes and regulations before the grant award will be approved. If your application is not successful, you will receive notification by mail.

All adverse determinations regarding applicant eligibility and the awarding of points as part of the selection process are administratively appealable (see 7 CFR part 11). Instructions about the appeal process will be provided at the time an applicant is notified of the adverse decision.

B. Administrative and National Policy Requirements

Additional requirements that apply to grantees selected for this program can be found in 7 CFR part 4284, subparts A and G, parts 3015, 3016 (as applicable), 3019 (as applicable), 3052, and 2 CFR parts 215 and 417. All recipients of Federal financial assistance are required to comply with the Federal Funding Accountability and Transparency Act of 2006 and must report information about subawards and executive compensation (see 2 CFR part 170). These recipients must also maintain their registration in SAM as long as their grants are active. So long as an applicant does not have an exception under 2 CFR 170.110(b), the applicant must have the necessary processes and systems in place to comply with the reporting requirements should the applicant receive funding (see 2 CFR 170.200(b)). These regulations may be obtained athttp://www.gpoaccess.gov/cfr/index.html.

The following additional requirements apply to grantees selected for this program:

If you have questions about this Notice, please contact the RuralDevelopment State Office located in your State as identified in theADDRESSESsection of this notice.

VIII. Nondiscrimination StatementNon-Discrimination Policy

USDA prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identify, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

To File a Program Complaint

If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online athttp://www.ascr.usda.gov/complain_filing_cust.html,or at any USDA office, or call (866) 632-9992 to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442 or email atprogram.intake@usda.gov.

Persons with Disabilities

Individuals who are deaf, hard of hearing or have speech disabilities and who wish to file either an EEO or program complaint, please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

Persons with disabilities who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.), please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

This information collection is proposing a revision to the currently approved information collection instrument to include updated language to reflect the revised Foreign-Trade Zones Board regulations and to remove certain questions from the report which are no longer required.

The Foreign-Trade Zone Annual Report is the vehicle by which Foreign-Trade Zone grantees report annually to the Foreign-Trade Zones Board, pursuant to the requirements of the Foreign-Trade Zones Act (19 U.S.C. 81a-81u). The annual reports submitted by grantees are the only complete source of compiled information on FTZs. The data and information contained in the reports relates to international trade activity in FTZs. The reports are used by the Congress and the Department of Commerce to determine the economic effect of the FTZ program. The reports are also used by the FTZ Board and other trade policy officials to determine whether zone activity is consistent with U.S. international trade policy, and whether it is in the public interest. The public uses the information regarding activities carried out in FTZs to evaluate their effect on industry sectors. The information contained in annual reports also helps zone grantees in their marketing efforts.

II. Method of Collection

The Foreign-Trade Zone Annual Report is collected from zone grantees in a web-based, electronic format.

III. Data

OMB Control Number:0625-0109.

Form Number(s):ITA-359P.

Type of Review:Regular submission (extension of a current information collection).

Estimated Time per Response:12 to 95 hours (depending on size and structure of foreign-trade zone).

Estimated Total Annual Burden Hours:11,660.

Estimated Total Annual Cost to Public:$0.

IV. Request for Comments

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

List of Petitions Received by Eda for Certification Eligibility to Apply for Trade Adjustment Assistance[4/11/2014 through 4/28/2014]Firm nameFirm addressDate accepted for

Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

In notice document 14-07270 beginning on page 18262 in the issue of Tuesday, April 1, make the following correction:

On page 18264, in the table, in the Antidumping Duty Proceedings column, under the heading for France, the first entry should read AREVA, NC

[FR Doc. C1-2014-07270 Filed 5-1-14; 8:45 am]BILLING CODE 1505-01-DDEPARTMENT OF COMMERCEInternational Trade Administration[A-570-970]Multilayered Wood Flooring from the People's Republic of China: Notice of Court Decision Not in Harmony With the Final Determination and Amended Final Determination of the Antidumping Duty InvestigationAGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

On April 23, 2014, the United States Court of International Trade (“CIT”) the CIT granted Plaintiffs'1consent motion for severance and entered final judgment inBaroque Timber Industries (Zhongshan) Company, Limited, et. al.v.United StatesandZhejiang Layo Wood Industry Co., Ltd.v.United States.2The CIT affirmed the Department of Commerce's (the “Department”) final determination of sales at less than fair value, as modified by the final results of redetermination with respect to Layo Wood and the Samling Group pursuant to court order, inBaroque Timber Industries (Zhongshan) Company, Limited, et. al.v.United States,3and affirmed that the antidumping margins for Layo Wood and the Samling Group arede minimis.

Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“CAFC”) inTimken Co.v.United States,893 F.2d 337 (Fed. Cir. 1990) (“Timken”), as clarified byDiamond Sawblades Mfrs.Coalition v.United States,626 F.3d 1374 (Fed. Cir. 2010) (“Diamond Sawblades”), the Department is notifying the public that the final judgment in this case is not in harmony with the Department'sMLWF Amended Final Determination4and is amending the final results with respect to Layo Wood and the Samling Group.

4See Multilayered Wood Flooring From the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order,76 FR 76690 (December 8, 2011) (“MLWF Amended Final Determination”).

On July 31, 2013, the CIT granted the Department's motion for voluntaryremand inBaroque Timber Industries (Zhongshan) Company, Limited, et. al.v.United Statesto (1) reconsider the surrogate value (“SV”) determination for Layo Wood's plywood input; (2) reconsider the proper United States Harmonized Tariff Schedule (“HTS”) category for valuing the Samling Group's high-density fiberboard (“HDF”) input; (3) reconsider the SV applied to Layo Wood's core veneer input; (4) provide further explanation or reconsideration of the SV calculation of Layo Wood's HDF input; (5) provide further explanation or reconsideration of its reasons for not adjusting Layo Wood's brokerage and handling SV to account for costs associated with letter of credit; and (6) reconsider its application of the targeted dumping method in light of changes to SVs and in conformity with current standards, with the understanding that reconsideration of the above issues may result in the statutory test for application of the targeted dumping method no longer being met with respect to theMLWF Amended Final Determination.Pursuant to the CIT's remand order, the Department made the following revisions: (1) Valued Layo Wood's plywood input with a SV reflecting plywood thicknesses of 6.35 millimeters (“mm”) and 12.7 mm; (2) valued the Samling Group's HDF with Philippine HTS category 4411.11 (“fiberboard greater than 0.8 G/Cm3, not worked or surface covered”); (3) valued Layo Wood's core veneer input with 2009 data reported by the Global Trade Atlas (“GTA”) for Philippine HTS category 4408.9090.06 (“sheets for plywood”); (4) provided further explanation for the Department's determination to continue converting the SV for Layo Wood's HDF using the average density of HDF used by Layo Wood; (5) adjusted Layo Wood's B&H SV to remove letter of credit costs not incurred by Layo Wood; and (6) calculated Layo Wood's and the Samling Group's dumping margins using an average-to-average comparison method, rather than the average-to-transaction comparison method.

Timken Notice

In its decision inTimken,as clarified byDiamond Sawblades,the CAFC held that, pursuant to section 516A(e) of the Act, the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's April 23, 2014 final judgment affirming the MLWF Final Remand Redetermination with respect to Layo Wood and the Samling Group constitutes a final decision of that court that is not in harmony with theMLWF Amended Final Determination.This notice is published in fulfillment of the publication requirements ofTimken.The CIT's April 23, 2014 final judgments also ordered that subject entries enjoined in Consol. Court No. 12-00007 with respect to Layo Wood and the Samling Group be liquidated in accordance with the final court decision, as provided for in section 516A(e) of the Act. Accordingly, the Department will issue instructions to U.S. Customs and Border Protection (“CBP”) that no margin exists with respect to Layo Wood and the Samling Group, and direct CBP to terminate the suspension of liquidation for shipments of multilayered wood flooring from the People's Republic of China entered, or withdrawn from warehouse, for consumption, produced and exported by Layo Wood and the Samling Group, on or after May 26, 2011, and to release any bond or other security, and refund any cash deposit collected for such entries.

Amended Final Determination

There is now a final court decision with respect to theMLWF Amended Final Determinationwith respect to Layo Wood and the Samling Group. Accordingly, the Department is amending the amended final less than fair value determination and the revised weighted-average dumping margins for these companies is as follows:

Dated: April 28, 2014.Paul Piquado,Assistant Secretary, for Enforcement and Compliance.[FR Doc. 2014-10118 Filed 5-1-14; 8:45 am]BILLING CODE 3510-DS-PDEPARTMENT OF COMMERCEInternational Trade Administration[A-570-890]Wooden Bedroom Furniture From the People's Republic of China: Notice of Initiation of Changed Circumstances Review, and Consideration of Revocation of the Antidumping Duty Order in PartAGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

Based on a request from Techcraft Manufacturing, Inc. (“Techcraft”), the Department of Commerce (the “Department”) is initiating a changed circumstances review to consider the possible revocation, in part, of the antidumping duty (“AD”) order on wooden bedroom furniture from the People's Republic of China (“PRC”) with respect to certain wall bed systems.

On January 4, 2005, the Department published theNotice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's Republic of China,70 FR 329 (January 4, 2005). On March 12, 2014, Techcraft requested revocation, inpart, of the AD order pursuant to sections 751(b)(1) of the Tariff Act of 1930, as amended (“the Act”) and section 351.216(b) of the Department's regulations, with respect to certain wall bed systems. On March 19, 2014, American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company, Inc. (collectively “Petitioners”) stated that they agree with the scope exclusion language proposed by Techcraft.

Scope of the Order

The product covered by the order is wooden bedroom furniture. Wooden bedroom furniture is generally, but not exclusively, designed, manufactured, and offered for sale in coordinated groups, or bedrooms, in which all of the individual pieces are of approximately the same style and approximately the same material and/or finish. The subject merchandise is made substantially of wood products, including both solid wood and also engineered wood products made from wood particles, fibers, or other wooden materials such as plywood, strand board, particle board, and fiberboard, with or without wood veneers, wood overlays, or laminates, with or without non-wood components or trim such as metal, marble, leather, glass, plastic, or other resins, and whether or not assembled, completed, or finished.

The subject merchandise includes the following items: (1) Wooden beds such as loft beds, bunk beds, and other beds; (2) wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds; (3) night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets; (4) dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser; (5) chests-on-chests,1highboys,2lowboys,3chests of drawers,4chests,5door chests,6chiffoniers,7hutches,8and armoires;9(6) desks, computer stands, filing cabinets, book cases, or writing tables that are attached to or incorporated in the subject merchandise; and (7) other bedroom furniture consistent with the above list.

1A chest-on-chest is typically a tall chest-of-drawers in two or more sections (or appearing to be in two or more sections), with one or two sections mounted (or appearing to be mounted) on a slightly larger chest; also known as a tallboy.

2A highboy is typically a tall chest of drawers usually composed of a base and a top section with drawers, and supported on four legs or a small chest (often 15 inches or more in height).

3A lowboy is typically a short chest of drawers, not more than four feet high, normally set on short legs.

4A chest of drawers is typically a case containing drawers for storing clothing.

5A chest is typically a case piece taller than it is wide featuring a series of drawers and with or without one or more doors for storing clothing. The piece can either include drawers or be designed as a large box incorporating a lid.

6A door chest is typically a chest with hinged doors to store clothing, whether or not containing drawers. The piece may also include shelves for televisions and other entertainment electronics.

7A chiffonier is typically a tall and narrow chest of drawers normally used for storing undergarments and lingerie, often with mirror(s) attached.

8A hutch is typically an open case of furniture with shelves that typically sits on another piece of furniture and provides storage for clothes.

9An armoire is typically a tall cabinet or wardrobe (typically 50 inches or taller), with doors, and with one or more drawers (either exterior below or above the doors or interior behind the doors), shelves, and/or garment rods or other apparatus for storing clothes. Bedroom armoires may also be used to hold television receivers and/or other audio-visual entertainment systems.

The scope of the order excludes the following items: (1) Seats, chairs, benches, couches, sofas, sofa beds, stools, and other seating furniture; (2) mattresses, mattress supports (including box springs), infant cribs, water beds, and futon frames; (3) office furniture, such as desks, stand-up desks, computer cabinets, filing cabinets, credenzas, and bookcases; (4) dining room or kitchen furniture such as dining tables, chairs, servers, sideboards, buffets, corner cabinets, china cabinets, and china hutches; (5) other non-bedroom furniture, such as television cabinets, cocktail tables, end tables, occasional tables, wall systems, book cases, and entertainment systems; (6) bedroom furniture made primarily of wicker, cane, osier, bamboo or rattan; (7) side rails for beds made of metal if sold separately from the headboard and footboard; (8) bedroom furniture in which bentwood parts predominate;10(9) jewelry armories;11(10) cheval mirrors;12(11) certain metal parts;13(12) mirrors that do not attach to, incorporate in, sit on, or hang over a dresser if they are not designed and marketed to be sold in conjunction with a dresser as part of a dresser-mirror set; (13) upholstered beds;14and (14) toy boxes.15

10As used herein, bentwood means solid wood made pliable. Bentwood is wood that is brought to a curved shape by bending it while made pliable with moist heat or other agency and then set by cooling or drying.SeeCBP's Headquarters Ruling Letter 043859, dated May 17, 1976.

11Any armoire, cabinet or other accent item for the purpose of storing jewelry, not to exceed 24 inches in width, 18 inches in depth, and 49 inches in height, including a minimum of 5 lined drawers lined with felt or felt-like material, at least one side door (whether or not the door is lined with felt or felt-like material), with necklace hangers, and a flip-top lid with inset mirror.SeeIssues and Decision Memorandum from Laurel LaCivita to Laurie Parkhill, Office Director, concerning “Jewelry Armoires and Cheval Mirrors in the Antidumping Duty Investigation of Wooden Bedroom Furniture from the People's Republic of China,” dated August 31, 2004.See also Wooden Bedroom Furniture From the People's Republic of China: Final Changed Circumstances Review, and Determination To Revoke Order in Part,71 FR 38621 (July 7, 2006).

12Cheval mirrors are any framed, tiltable mirror with a height in excess of 50 inches that is mounted on a floor-standing, hinged base. Additionally, the scope of the order excludes combination cheval mirror/jewelry cabinets. The excluded merchandise is an integrated piece consisting of a cheval mirror,i.e.,a framed tiltable mirror with a height in excess of 50 inches, mounted on a floor-standing, hinged base, the cheval mirror serving as a door to a cabinet back that is integral to the structure of the mirror and which constitutes a jewelry cabinet line with fabric, having necklace and bracelet hooks, mountings for rings and shelves, with or without a working lock and key to secure the contents of the jewelry cabinet back to the cheval mirror, and no drawers anywhere on the integrated piece. The fully assembled piece must be at least 50 inches in height, 14.5 inches in width, and 3 inches in depth.See Wooden Bedroom Furniture From the People's Republic of China: Final Changed Circumstances Review and Determination To Revoke Order in Part,72 FR 948 (January 9, 2007).

13Metal furniture parts and unfinished furniture parts made of wood products (as defined above) that are not otherwise specifically named in this scope (i.e.,wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds) and that do not possess the essential character of wooden bedroom furniture in an unassembled, incomplete, or unfinished form. Such parts are usually classified under HTSUS subheadings 9403.90.7005, 9403.90.7010, or 9403.90.7080.

14Upholstered beds that are completely upholstered,i.e.,containing filling material and completely covered in sewn genuine leather, synthetic leather, or natural or synthetic decorative fabric. To be excluded, the entire bed (headboards, footboards, and side rails) must be upholstered except for bed feet, which may be of wood, metal, or any other material and which are no more than nine inches in height from the floor.See Wooden Bedroom Furniture from the People's Republic of China: Final Results of Changed Circumstances Review and Determination to Revoke Order in Part,72 FR 7013 (February 14, 2007).

15To be excluded the toy box must: (1) Be wider than it is tall; (2) have dimensions within 16 inches to 27 inches in height, 15 inches to 18 inches in depth, and 21 inches to 30 inches in width; (3) have a hinged lid that encompasses the entire top of the box; (4) not incorporate any doors or drawers; (5) have slow-closing safety hinges; (6) have air vents; (7) have no locking mechanism; and (8) comply with American Society for Testing and Materials (“ASTM”) standard F963-03. Toy boxes are boxes generally designed for the purpose of storing children's items such as toys, books, and playthings.See Wooden Bedroom Furniture from the People's Republic of China: Final Results of Changed Circumstances Review and Determination to Revoke Order in Part,74 FR 8506 (February 25, 2009). Further, as determined in the scope ruling memorandum “Wooden Bedroom Furniture from the People's Republic of China: Scope Ruling on a White Toy Box,” dated July 6, 2009, the dimensional ranges used to identify the toy boxesthat are excluded from the wooden bedroom furniture order apply to the box itself rather than the lid.

Imports of subject merchandise are classified under subheadings 9403.50.9042 and 9403.50.9045 of the HTSUS as “wooden . . . beds” and under subheading 9403.50.9080 of the HTSUS as “other . . . wooden furniture of a kind used in the bedroom.” In addition, wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds may also be entered under subheading 9403.50.9042 or 9403.50.9045 of the HTSUS as “parts of wood.” Subject merchandise may also be entered under subheadings 9403.50.9041, 9403.60.8081, or 9403.20.0018. Further, framed glass mirrors may be entered under subheading 7009.92.1000 or 7009.92.5000 of the HTSUS as “glass mirrors . . . framed.” The order covers all wooden bedroom furniture meeting the above description, regardless of tariff classification. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.

Initiation of Changed Circumstances Review, and Consideration of Revocation of the Order in Part

Pursuant to section 751(b) of the Act, the Department will conduct a changed circumstances review upon receipt of a request from an interested party16which shows changed circumstances sufficient to warrant a review of an order.17Based on the information provided by Techcraft and the Petitioners' statement that they agree with Techcraft's exclusion language for certain wall bed systems, the Department has determined that there exist changed circumstances sufficient to warrant a changed circumstances review of the AD order on wooden bedroom furniture from the PRC.18

16Techcraft stated in its January 15, 2014 scope ruling request that it is an exporter of the certain wall bed systems, which are currently subject to this order, and as such is an interested party pursuant to 19 CFR 351.102(a)(29)(i).

17See19 CFR 351.216.

18Seesection 751(b) of the Act and 19 CFR 351.216(d).

Section 782(h)(2) of the Act and 19 CFR 351.222(g)(1)(i) provide that the Department may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have expressed a lack of interest in the order, in whole or in part. In addition, in the event the Department determines that expedited action is warranted, 19 CFR 351.221(c)(3)(ii) permits the Department to combine the notices of initiation and preliminary results. In its administrative practice, the Department has interpreted “substantially all” to mean producers accounting for at least 85 percent of the total U.S. production of the domestic like product covered by the order.19Because Petitioners did not indicate whether they account for substantially all of the domestic production of wooden bedroom furniture, we are providing interested parties with the opportunity to address the issue of domestic industry support with respect to this proposed partial revocation of the order and we are not combining this notice of initiation with a preliminary determination pursuant to 19 CFR 351.221(c)(3)(ii). As explained below, this notice of initiation will accord all interested parties an opportunity to address the proposed partial revocation.

Interested parties are invited to provide comments and/or factual information regarding this changed circumstances review, including comments concerning industry support. Comments and factual information may be submitted to the Department no later than 14 days after the date of publication of this notice. Rebuttal comments and rebuttal factual information may be filed with the Department no later than 10 days after the comments and/or factual information are filed with the Department.20All submissions must be filed electronically using Enforcement and Compliance's AD and CVD Centralized Electronic Service System (IA ACCESS).21An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Time on the due dates set forth in this notice.

20See19 CFR 351.301(b)(2)

21See,generally, 19 CFR 351.303.

The Department will issue the preliminary results of this changed circumstances review, in accordance with 19 CFR 351.221(c)(3), which will set forth the factual and legal conclusions upon which the preliminary results are based, and a description of any action proposed because of those results. Pursuant to 19 CFR 351.221(b)(4)(ii), interested parties will have an opportunity to comment on the preliminary results of the review. In accordance with 19 CFR 351.216(e), the Department will issue the final results of its AD changed circumstance review within 270 days after the date on which the review is initiated.

This initiation is published in accordance with sections 751(b)(1) of the Act and 19 CFR 351.216(b) and 351.221(b)(1).

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305c of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (seeADDRESSES), at least 5 working days prior to the meeting.

Note:

The times and sequence specified in this agenda are subject to change.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

DATES:

This meeting will be held on Tuesday, May 20, 2014 at 9 a.m.

ADDRESSES:

The meeting will be held at the Omni Providence Hotel, 1 West Exchange Street, Providence, RI 02048; telephone: (401) 598-8000; fax: (401) 598-8200.

The Advisors will review a draft performance report of the Limited Access General Category Individual Fishing Quota fishery (2010-12). The Advisors will also provide recommendations for research priorities for the next Scallop Research Set-Aside federal funding announcement. Finally, the Advisors will provide input related to Framework Adjustment 26 to the Scallop Fishery Management Plan. The primary purpose of Framework 26 is to set fishery specifications for FY2015 and FY2016 (default). The Council is expected to review and take action on all three items at the June Council meeting.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; receipt of application for amendment.

SUMMARY:

Notice is hereby given that NMFS National Marine Mammal Laboratory, Seattle, WA, has applied in due form for an amendment to Permit No. 16087-01 to conduct research on marine mammals.

DATES:

Written, telefaxed, or email comments must be received on or before June 2, 2014.

ADDRESSES:

The application and related documents are available for review by selecting “Records Open for Public Comment” from theFeaturesbox on the Applications and Permits for Protected Species (APPS) home page,https://apps.nmfs.noaa.gov, and then selecting File No. 16087 from the list of available applications.

These documents are also available upon written request or by appointment in the following office:

Written comments on this application should be submitted to the Chief, Permits, Conservation and Education Division, at the address listed above. Comments may also be submitted by facsimile to (301)713-0376, or by email toNMFS.Pr1Comments@noaa.gov.Please include File No. 16087 in the subject line of the email comment.

Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

FOR FURTHER INFORMATION CONTACT:

Amy Sloan or Tammy Adams, (301)427-8401.

SUPPLEMENTARY INFORMATION:

The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226).

The applicant requests an amendment to (1) modify annual takes and sample collection methods for California sea lions, Pacific harbor seals, and northern elephant seals; (2) add census, tagging and monitoring of threatened Guadalupe fur seal (Arctophoca phillipitownsendi) populations on the California Channel Islands; and (3) extend the duration of the permit by five years.

The take tables in Permit No. 16087-01 include annual takes for all species that limits takes to a maximum number less than the total of all annual takes over 5 years. The permit holder requests to remove the limit and thus increase the number of animals taken by disturbance, capture and sampling, and mortalities as indicated in the application take tables to allow annual takes over the duration of the permit. The permit holder also requests to collect ocular swabs, increase the number of swabs collected from each orifice to improve disease surveillance, and increase the number of animals from which swabs may be taken for all species. The permit holder requests pulling vibrissae in addition to clipping (already permitted) to allow the extraction of the entire vibrissae for stable isotope analysis so that entire foraging records can be obtained for all species. The request also includes an increase of 310 California sea lions that may be taken annually by capture and handling (from 3,315 to 3,625 annually) and an increase of up to 50 northern elephant seals that may be taken annually by capture and handling (from 50 to 100 annually) to allow for seasonal sampling for both species.

The permit holder also requests adding stock assessment research on Guadalupe fur seals to include: (1) Vessel and land censuses of all the California Channel Islands and haul out sites along the California, Oregon and Washington coasts to obtain a current population assessment of the species for NMFS status review and to identify the seasonality of their presence in U.S. waters; (2) remote camera deployment and visual observations for behavioral studies; (3) flipper tagging and morphometrics on pups at least one month old; (4) opportunistic collection of carcasses, scats, hair or other tissues from haulout areas following disturbance from surveys or when adult individuals are not present; and (5) incidental disturbance of Guadalupe fur seals while conducting California sea lion, northern elephant seal or harbor seal research. The permit holder requests to take up to 300 Guadalupe fur seals annually distributed over five geographic areas, including 200 by incidental disturbance and 100 by capture and handling. The permit holder also requests one unintentional research-related mortality of Guadalupe fur seals over the duration of the permit.

The permit holder requests that the duration of the permit, with the proposed amendments, be extended for a five-year period.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

Concurrent with the publication of this notice in theFederal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

On February 28, 2014 (79 FR 11422-11423), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed addition to the Procurement List.

After consideration of the material presented to it concerning capability of qualified nonprofit agency to furnish the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.

2. The action will result in authorizing a small entity to provide the service to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.

Committee for Purchase From People Who Are Blind or Severely Disabled.

ACTION:

Proposed additions to and deletion from the procurement list.

SUMMARY:

The Committee is proposing to add products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes a service previously provided by such agency.

DATES:

Comments must be received on or before: June 2, 2014.

ADDRESSES:

Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202-4149.

This notice is published pursuant to 41 USC 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

Additions

If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

The following products and service are proposed for addition to the Procurement List for production by the nonprofit agencies listed:

The Corporation for National and Community Service (CNCS), as partof its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that: Requested data can be provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents can be properly assessed.

Currently, CNCS is soliciting comments concerning its proposed National Assessment of the Social Innovation Fund (SIF). The study involves two major data collection activities. The first is a survey of SIF grantees (intermediary organizations) and two comparison groups (non-selected SIF applicant organizations, and a sample of national nonprofits that make grants to U.S. organizations). The second involves semi-structured interviews with stakeholders of the intermediaries to obtain more in-depth understanding of the SIF program. Both the survey and the stakeholder interviews are intended to be repeated annually for three years. The survey and stakeholder interviews are designed to allow CNCS SIF program administrators and others in the field to understand how the SIF program is implemented and what effects the program has on participating organizations (intermediaries and sub grantees) and on the larger field of social innovation, scaling of interventions, and evidence-based grantmaking. Completion of this information collection is not required to be considered for or obtain grant funding from the Social Innovation Fund.

Copies of the information collection request can be obtained by contacting the office listed in the Addresses section of this Notice.

DATES:

Written comments must be submitted to the individual and office listed in theADDRESSESsection by July 1, 2014.

ADDRESSES:

You may submit comments, identified by the title of the information collection activity, by any of the following methods:

(1) By mail sent to: Corporation for National and Community Service, Office of Research and Evaluation; Attention: Lily Zandniapour, Ph.D., Evaluation Program Manager, Room 10911, 1201 New York Avenue NW., Washington, DC, 20525.

(2) By hand delivery or by courier to the CNCS mailroom at Room 8100 at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except Federal holidays.

(3) Electronically throughwww.regulations.govor through the Corporation's email system tolzandniapour@cns.gov.

Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Lily Zandniapour, 202-606-6939, or by email atlzandniapour@cns.gov.

SUPPLEMENTARY INFORMATION:

CNCS is particularly interested in comments that:

• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;

• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhance the quality, utility, and clarity of the information to be collected; and

• Minimize the burden of the collection of information on those who are expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submissions of responses).

Background

CNCS has contracted with ICF International to support CNCS's Office of Research and Evaluation to implement a national assessment of the SIF program, focusing on SIF impact on use of evidence-based grant making strategies, organizations' ability and willingness to build the evidence base for models and to scale models, and collaborative approaches to addressing local community needs. This project involves a quasi-experimental research design, using a survey of SIF grantees (intermediaries), and comparison groups of (1) non-selected applicants and (2) other grant making nonprofits. Additionally the study involves a series of brief interviews with various stakeholders to augment and assist in understanding the survey results.

Survey data will be collected using an on-line survey program. Interview data will be collected via taped and written notes on telephone conversations.

Data analysis will focus on identifying and understanding factors associated with intermediaries' selection and support of sub-grantees, implementation of rigorous evaluation methods, scaling of evidence-based interventions, and change in organizational culture, infrastructure, and behavior. Quantitative data analysis will include descriptive statistics, inferential analysis of survey responses by organization characteristics, and comparisons among SIF grantees and between grantees and the comparison groups. Qualitative data analysis of stakeholder interviews will supplement data from the surveys.

Average Time Per Response:Averages 36.9 minutes for surveys and 30 minutes for interviews.

Respondent categoryNumberTime

(minutes)

Estimated total burden hours

per year

Estimated total burden hours over three yearsSurvey Respondents52036.9320960Interview Participants1003050150

Estimated Total Burden Hours:370 hours per year and 1,110 hours over three years.

Total Burden Cost (capital/startup):None.

Total Burden Cost (operating/maintenance):None.

Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.

The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

FOR FURTHER INFORMATION CONTACT:

Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.

The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 14-02 with attached transmittal and policy justification.

(iii)Description and Quantity or Quantities of Articles or Services under Consideration for Purchase:Provides three years of support services for the Facilities Security Forces-Training and Advisory Group (FSF-TAG) in Riyadh, Saudi Arabia in support of the Kingdom of Saudi Arabia Ministry of Interior (MOI). The support will include technical assistance and advisory support salaries, housing, office equipment, training, maintenance, vehicles, travel, furniture, and other related support.

(vii)Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold:None.

(viii)Date Report Delivered to Congress:17 April 2014

* as defined in Section 47(6) of the Arms Export Control Act.

POLICY JUSTIFICATIONKingdom of Saudi Arabia—Support Services

The Government of Saudi Arabia has requested a possible sale to provide three years of support services for the Facilities Security Forces- Training and Advisory Group (FSF-TAG) in Riyadh, Saudi Arabia in support of the Kingdom of Saudi Arabia Ministry of Interior (MOI). The support will include technical assistance and advisory support salaries, housing, office equipment, training, maintenance, vehicles, travel, furniture, and other related support. The estimated cost is $80 million.

This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country that has been and continues to be an important force for political stability in the Middle East.

This proposed sale will provide the continuation of FSF-TAG and its ability to provide services to Saudi Arabia's MOI in support of its critical infrastructure protection efforts. The proposed sale conveys the U.S.'s continued commitment to Saudi Arabia's security and strengthens our strategic partnership.

The proposed sale will not alter the basic military balance in the region.

There is no prime contractor associated with this proposed sale. There are no known offset agreements in connection with this potential sale.

Implementation of this proposed sale requires the assignment of U.S. Government or contractor representatives to Saudi Arabia. At present, there are approximately 95 U.S. Government personnel and contractor representatives in country supporting FSF-TAG.

There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

FOR FURTHER INFORMATION CONTACT:

Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.

The following is a copy of a letter to the Speaker of the House of Representatives,

This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a strategic partner. Mexico has been a strong partner in combating organized crime and drug trafficking organizations. The sale of these UH-60M helicopters to Mexico will significantly increase and strengthen its capability to provide in-country airlift support for its forces engaged in counter-drug operations.

Mexico intends to use these defense articles and services to modernize its armed forces and expand its existing army architecture in its efforts to combat drug trafficking organizations.

The proposed sale of this equipment and support will not alter the basic military balance in the region.

The principal contractors will be Sikorsky Aircraft Company in Stratford, Connecticut; and General Electric Aircraft Company (GEAC) in Lynn, Massachusetts. There are no known offset agreements in connection with this potential sale.

Implementation of this proposed sale may require the assignment of an additional three U.S. Government and five contractor representatives in country full-time to support the delivery and training for approximately two years.

There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

Transmittal No. 14-10Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control ActAnnexItem No. vii

(vii)Sensitivity of Technology:

1. The UH-60M aircraft is a medium lift aircraft which includes two T-701D Engines, and the Common Avionics Architecture System (CAAS) cockpit, which provides aircraft system, flight, mission, and communication management systems. The CAAS includes five Multifunction Displays (MFDs), two General Purpose Processor Units (GPPUs), two Control Display Units (CDUs) and two Data Concentrator Units (DCUs). The Navigation System will have Embedded GPS/INS (EGIs), two Digital Advanced Flight Control Systems (DAFCS), one ARN-149 Automatic Direction Finder, one ARN-147 (VOR/ILS marker Beacon System), one ARN-153 TACAN, two air data computers, and one Radar Altimeter system. The communication equipment includes the AN/APX-118 Identification Friend of Foe (IFF) system. The AN/ARC-210 RT-8100 Series V/UHF radio will be included in the UH-60M configuration. Exportable HF or Single Channel Ground and Airborne Radio System (SINCGARS) radio capability may be included in the future.

2. The AN/APX-118 IFF Transponder is capable of Modes 1, 2, 3, 3a, and the system is unclassified unless loaded with IFF Mode 4 keying material, in which case it will become classified Secret.

3. The AN/ARC-210 RT-8100 Series radio is a V/UHF voice and data capable radio using commercial encryption.

4. The Embedded GPS/INS (EGI) unit H-764G provides GPS and INS capabilities to the aircraft. The EGI will include Selective Availability anti-Spoofing Module (SAASM) security modules to be used for secure GPS PPS if required.

5. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures or equivalent systems which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.

6. A determination has been made that the recipient country can provide the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.

7. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Mexico.

[FR Doc. 2014-10023 Filed 5-1-14; 8:45 am]BILLING CODE 5001-06-PDEPARTMENT OF DEFENSEDepartment of the ArmyNotice of Availability of the Record of Decision for the Disposition of Hangars 2 and 3, Fort Wainwright, AlaskaAGENCY:

Department of the Army, DoD.

ACTION:

Notice of availability.

SUMMARY:

The Garrison Commander at Fort Wainwright, Alaska, has reviewed the Final Environmental Impact Statement (EIS) for the Disposition of Hangars 2 and 3 at Fort Wainwright, Alaska, and made the decision to proceed with the implementation of Alternative 1, Demolition of Hangars 2 and 3 (the selected alternative), which includes the demolition of both hangars and supporting infrastructure. Hangars 2 and 3 are World War II-era hangars and are contributing resources within the Ladd Field National Historic Landmark (NHL) and Ladd Air Force Base Cold War Historic District. Specific details of the decision are captured in the Army's Record of Decision (ROD) for this action. Both hangars no longer meet the functional requirements of maintenance facilities for the modern Army aircraftfleet, currently serve no active function, and are a safety hazard due to their compromised structural integrity. This alternative meets the Army's following objectives: (1) Eliminate fire and safety issues associated with Hangars 2 and 3; (2) eliminate non-mission essential funding expenditures; (3) make available the valuable airfield space the hangars occupy to support the military mission because the hangars no longer meet the functional requirements of maintenance facilities for modern aircraft and are unable to support the aviation mission; (4) meet the special requirements for NHLs under Section 110 of the National Historic Preservation Act (NHPA) and its implementing regulations (to the maximum extent possible, undertake such necessary planning and actions that minimize harm to NHLs); and (5) avoid, minimize, or otherwise mitigate any adverse effects on historic resources through Section 106 consultation under the NHPA.

ADDRESSES:

Questions and requests for copies of either the ROD, Draft, or Final EIS should be forwarded to: Mr. Matthew Sprau, Directorate of Public Works, Attention: IMFW-PWE (Sprau), 1060 Gaffney Road #4500, Fort Wainwright, Alaska 99703-4500 or send email requests to:matthew.h.sprau.civ@mail.mil. Documents are also available for the public athttp://www.wainwright.army.mil/env/Current.html.